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Constituting America first published this message from Founder & Co-President Janine Turner over Memorial Day Weekend, 2010, the inaugural year of our organization.  We are pleased to share it with you again, as we celebrate our 9th birthday!  

On this Memorial Day weekend, I think it is appropriate to truly contemplate and think about the soldiers and families who have sacrificed their lives and loved ones, and given their time and dedication to our country.

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Guest Essayist: Gary Porter

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“All politics is local”[i]

Black’s Law Dictionary, 4th Edition defines “Constitution” as “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.” (Emphasis added)

What if a government represents not a “nation or state” but a city or county full of people; does that government also require a constitution?  What if a state, which has a constitution, incorporates a city or county as a political subdivision of the state, is that city or county bound only by the limits of the state constitution, or must it operate from a more narrow set of powers? There being 89,004 local governments in the United States, this is a significant question.[ii]

It is a question politicians have wrestled with since the first elective government was set in place in 1619 Virginia: what are the limits of authority to be exercised by a state’s lower-tiered governments?

John Forrest Dillon (1831-1914) was an American jurist who served on both federal and Iowa state courts during his lengthy career.[iii] In 1872, while sitting on what would later become the Court of Appeals for the Eighth Circuit, he published an influential extended essay or treatise on the power of states over municipal governments, entitled “Municipal Corporations,” or, later, “The Law of Municipal Corporations.” Dillon argued, quite persuasively it seems, that municipal governments can operate only within the express powers given them by their state governments. Dillon’s idea can be summarized this way:

“A municipal corporation possesses and can exercise the following powers and no others: First, those granted in express words (from the state); second, those necessarily implied or necessarily incident to the powers expressly granted; third, those absolutely essential to the declared objects and purposes of the corporation-not simply convenient, but indispensable; and fourth, any fair doubt as to the existence of a power is resolved by the courts against the corporation.”[iv]

In essence, since they are created by the state, local governments exist to perform the tasks of the state at the local level. This makes perfect sense. If it were otherwise, an additional constitution would seem to be required; no government should be allowed to operate without clearly specified limits to its power, or tyranny would soon commence. And if a city, for instance, were to operate with only the bounds provided by the state constitution, conflicts would quickly arise over the boundary between the city’s and state’s jurisdiction. Confusion would reign supreme.

“The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse,” said James Madison on the floor of the Virginia Ratifying Convention in 1788. A hundred years later, America’s cities were growing by leaps and bounds. Tax revenues were increasing exponentially and corruption soon followed. Grafting, which is the unscrupulous use of a politician’s authority for personal gain, was a common practice in utility franchising and public works projects. To make matters worse, local governments borrowed outrageous sums of money in order to attract big businesses and railroad com­panies. Unable to pay businesses back, local officials dissolved their cities and left the debt to the state. Lord Bryce of England observed in 1888: ‘There is no denying that the government of cities is one conspicuous failure of the United States.’”[v]

In Hunter v. Pittsburgh (1907), the Supreme Court cited Dillon’s Municipal Corporations and fully adopted his view of state power over municipalities. Note, this was while Dillon was yet alive – what an honor to have your work cited by the highest court in the land!

Today, the municipalities of forty states operate under some form of Dillon Rule, my home state of Virginia being one of them. There are different versions; some states apply Dillon’s Rule only to cities, some only to counties (Alabama) some only to townships (Indiana).

Louisiana applies the rule only to “pre-1974 charter municipalities.”

The alternative to Dillon’s Rule is called Home Rule,[vi] the principle that local government can exert broad-based power, only restrained by the state and national constitutions. We should realize that before Dillion published his ideas in 1872, there was only home rule or its un-named equivalent for the nearly one hundred years that came before Dillon under the Constitution. Whether a local government is governed by the Dillon Rule or Home Rule, the ultimate decision regarding what power they do possess resides with the state government.

But Dillon’s Rule is increasingly coming under attack. Many elected officials of localities controlled by Dillion’s Rule today contend they are “handcuffed” by its restrictions.[vii]  They argue that Dillion’s Rule provides them little to no power to deal with certain problems, particularly growth within their jurisdiction or technologically complex issues such as fracking, which may extend across jurisdictional boundaries. The proponents of Home Rule argue that there are areas where state power should not infringe on that of local government and many are pushing to have their state either change completely to Home Rule or at least loosen the restrictions of Dillon’s Rule. Many states only apply Home Rule to certain municipalities. Arizona, for example, only applies Home Rule to cities with a population of at least 3,500 people. Thirty-one states apply either straight Dillon’s Rule or a combination of Dillon’s Rule and Home Rule to local jurisdictions.

One problem with Home Rule is uniformity. City governments operating under Home Rule may vary significantly in the quality and effects of their governance due to the way various administrations over the years have exerted their more loosely defined power.  Under Dillon’s Rule municipalities generally operate from a standard set of powers and/or restrictions.

The states of the United States were intended to be, essentially, laboratories within which “experiments” in government could be tried.  The Tenth Amendment supports this view, stating that whatever political power was not delegated to the national government remained with the states and their people.  Whether Home Rule or Dillon’s Rule or some combination of both will win out remains to be seen. In any case, the idea of a self-ruling people demands that the decision not be left to the politicians.

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 a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[i] Variously attributed to Associated Press Washington bureau chief Byron Price (1932) and to Chicago writer Finley Peter Dunne (1867-1936), but most famously used by former Speaker of the House Tip O’Neil.

[ii] https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html.

[iii] https://en.wikipedia.org/wiki/John_Forrest_Dillon.

[iv] City of Clinton v Cedar Rapids and the Missouri River Rail Road Company, accessed at: https://supreme.justia.com/cases/federal/us/110/27/.

[v] ACCE-White-Paper-Dillon-House-Rule-Final, accessed at: https://www.acce.us/app/uploads/2016/06/2016-ACCE-White-Paper-Dillon-House-Rule-Final.pdf.

[vi] https://en.wikipedia.org/wiki/Home_rule_in_the_United_States.

[vii] Is Home Rule the Answer? Accessed at https://www.brookings.edu/research/is-home-rule-the-answer-clarifying-the-influence-of-dillons-rule-on-growth-management/

Guest Essayist: Gary Porter

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Once upon a time in America, before the Constitution was ratified, the state courts were the only game in town (and in each state). But there was also a time in America when there were no courts whatsoever.

In early May 1607, stepping off the ship Susan Constant, in chains, was none other than Captain John Smith.  Smith was one of 105 men and boys, plus 39 sailors who had made the perilous 144 day voyage from England.

Smith was among the most enterprising and useful members of the colony, traits that served to make others of the company jealous of his influence. Midway through the voyage Smith had been absurdly charged with plotting to murder the thirteen member ruling council, usurp the government, and make himself King of Virginia. He was confined for the remainder of the voyage. The charge was absurd in the extreme since no one on the three ships making up the small expedition even knew the names of the council members; they were sealed — to be revealed only upon arrival in America.

On their arrival at what would be called Jamestown, Smith was liberated and the roster of councilmen’s names opened, only to reveal that Smith had been assigned as one of the thirteen members.  Smith complained of his unjust imprisonment and demanded a trial but could not obtain one: there was no court! The settlers quickly realized they had other pressing matters: namely, survival!  Half the settlers would die in the first six months; all the while, Smith proclaimed his innocence but was not allowed to take his seat on the council.

When Smith’s enemies could postpone it no longer, a hearing of the case was held and Smith was acquitted of all the charges against him; soon after, he took his rightful council seat.[1]

Shifting to the north, one of the first acts of the Pilgrims of Plymouth after establishing themselves as a “civil body politic” by means of the Mayflower Compact was to establish The General Court of Plymouth Colony, the first to establish a complete legal code in America.[2]

Eventually, as each of the American colonies was settled, courts were established to handle the inevitable squabbles between settlers.

Fast forward to 1781.  One of the chief defects in the Articles of Confederation was that it provided no court system above the state level. With no supervision from above, state courts ruled pretty much as they pleased, not always to the satisfaction of all concerned. The consistent rulings of the Massachusetts court system in favor of creditors and against poor farmers sparked the infamous Shays Rebellion[3] in which, not long after they had fought side by side, Massachusetts farmers and Massachusetts militiamen formed opposing lines and opened fire on each other outside Springfield Arsenal.

Then came the Constitution.

“The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish,” so says Article 3, Section One of the U.S. Constitution.  This clause obviously enables creation of the federal court system but the Constitution has little to say about the state court systems:  The Judges in every State “shall be bound” to view the Constitution as the “the supreme Law of the Land” (Article VI), and the “[t]rial of all Crimes, except in Cases of Impeachment, shall be … held in the State where the said Crimes shall have been committed” (Article III, Section 2). That’s pretty much all the Constitution has to say!

About one million cases are filed in the U.S. federal court system each year, while more than 30 million are filed in state courts.[4]

Today, state courts are considered courts of “general” jurisdiction. They hear all the various types of cases not specifically reserved to federal courts. Just as the federal courts interpret federal laws, state courts interpret state laws (although federal courts also get to interpret state laws).

Examples of cases typically heard in state courts include:

  • Violations of state law. Most criminal activity falls in this category, such as robbery, assault, murder, and many drug-related crimes.
  • Controversies arising out of the state constitution or other state laws.
  • Cases in which the state is a party, such as state tax violations.
  • Most real estate cases, malpractice, personal injury cases, and contract disputes.
  • All family, divorce, custody, inheritance and probate cases.
  • Nearly all traffic and juvenile cases

The structure of state court systems varies considerably but there are similarities. To get an idea of what the structure of state courts look like some example states, click on the links below:

The “workhorse” of any state court system is the trial court. This is the lowest level of court and usually where a case or lawsuit will originate. It may be a court of general jurisdiction, such as a circuit court, or it may be a court of special or limited jurisdiction, such as a probate, juvenile, traffic, or family court.

  • Probate courts handle the administration of estates and probating of wills.
  • Family courts focus on cases involving custody and child support, neglect and abuse, and, sometimes, juvenile crime or truancy.
  • Traffic courts handle alleged violations of traffic laws.
  • In some states, special housing courts, or landlord-tenant courts, have been established.
  • Small-claims courts handle civil matters in which the dollar amount at issue is below a certain amount.
  • Juvenile courts generally handle truancy and criminal offenses committed by minors.

Each state has a Supreme Court which is generally considered the court “of last resort” unless and until the matter qualifies for a hearing in the federal court system.

While most federal judges are appointed to their positions, the majority of state trial court judges are elected by the citizens. In some states, supreme court justices are appointed by state governors or legislatures, while in others, justices are elected.

Throughout Virginia’s history (my state), the selection and term of state judges has varied. In 1776, the state legislature selected state judges to serve a life term. Between 1850 and 1864, the citizenry elected state judges. Between 1864 and 1870, state judges were nominated by the governor and confirmed by the state legislature. After 1870, the General Assembly assumed full responsibility for the selection of state judges in Virginia.

State courts play a vital role in our nation’s legal system.  If you are ever a party to a lawsuit or are called as a trial witness, it will likely be in a state court. Without the fifty state court systems the federal court system would be overwhelmed.  State courts are usually easy to locate and provide a great opportunity to introduce school children to the U.S. legal system.

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 a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] A famous mural depicting the trial sits in the Cuyahoga County Courthouse.

[2] https://worldhistoryproject.org/1636/10/4/the-general-court-of-the-plymouth-colony-instituted-a-legal-code

[3] https://en.wikipedia.org/wiki/Shays%27_Rebellion

[4] https://www.bjs.gov/index.cfm?ty=tp&tid=30

Guest Essayist: Marc Clauson

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What is the purpose and impact of Article IV, Section 4 of the U.S. Constitution in that “The United States shall guarantee to every State in this Union a Republican Form of Government”? How does this form relate to the republican (representative) styles such as Commission Form, County Administrator, Elected Executive, City-County Consolidation, Constitutional Row Offices or Home Rule Authority to ensure power remains in the hands of each American, preventing a monarchy or aristocracy in each state and local government?

The idea of a republican government was raised at the Constitutional Convention in the atmosphere of the just-ended War for Independence.  The primary target of the signers of the Declaration has been the  English king, who was designated a tyrant.  This same target lies in the background in discussions of the governmental form.  In addition, the Founders had read widely in ancient and recent history and had studied many forms of government labeled as republics.  Their conclusions were ambiguous.  They were not agreed as to what a republic was, but they did agree on what it was not.  The meaning of Article IV, Section 4, then has to be understood in this light. For the Founders, it meant simply that government was not a monarchy. So to guarantee a monarchy was to eliminate monarchy as legitimate, but then to “fill in details” as to what it was by drawing on many diverse sources in order to design the best constitutional form.  In a positive sense, therefore, a republic contained elements of democracy, aristocracy and some executive function, though never only a monarchy.  It was also viewed as a form in which all power was limited and checked in various ways.

It is then the task of architects of governmental forms to design governmental structures to discover those institutional structures that promote republican government.  Obviously this means no monarchy (or one-man rule), but that itself does not tell us what forms are best or whether we may have “sneaked” in one-man rule in other guises.  It was in the late nineteenth century, during the Progressive Era, that unique forms of government began to be proposed at state and local levels.

The motives behind the Progressive Movement treated the Constitution as an outmoded document in the light of a complex and changing society.  But one aspect of that movement was a desire for more democracy at all levels of government. By itself, that desire could be beneficial insofar as it marked a return to consent as the basis for governments.  This democratizing trend then was consistent with the spirit of Article IV, Section 4.  However, it’s weakness would be a failure to maximize the use of checks and balances at state and local levels, leaving the elected bodies themselves with virtually sole power with no limits except those imposed by state and Federal constitutions.

In particular, institutions like Home Rule government do bring the people closer to those who govern them, but at the same time, can increase centralization of government.  So even though the officials of those urban areas might be elected, the number of officials elected might be smaller and there might be no enforceable constitutional limits.  It is necessary therefore to carefully design institutions, even though we might construct more democratic processes.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

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Guest Essayist: Joerg Knipprath

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A wave of state constitutional conventions during the middle of the 19th century reflected the increased “democratization” of American politics that resulted in the election of President Andrew Jackson and the emergence of two modern national programmatic parties, the Democrats and the Whigs. In established and newly-formed states, the growing movement for popular control over government led to reforms of judicial systems by having judges run for political office under partisan aegis and denomination. Today, eight states retain some form of partisan election for their appellate courts, and more do so for their general trial courts.

By the late nineteenth century, the tide turned again, with partisan politics becoming identified with political corruption, urban political “machines,” and party bosses controlling the process from “smoke-filled back rooms.” Over the next several decades, reformers, often working under the label of “Progressivism,” pushed broadly for nonpartisan elections, including for judicial offices. Most new states, as well as some established states, adopted this system in the several decades beginning in the 1880s. About one-third of the states still have nonpartisan elections for their appellate courts; still more do so for their general trial courts.

There were also dissenters to the very idea of elected judges, at least above the level of local trial courts. Legal elites claimed that elections undermined judicial independence and gave short shrift to legal knowledge, experience, and temperament. One alternative would have been to follow the path of European systems that make judges civil servants, with a professional career path focused on passing examinations and embarking on the judicial analog to the old Roman cursus honorum to be selected to higher courts. While such a system makes sense for administrative courts or for courts that address technical issues of contract, property, or even criminal law, American courts address constitutional law controversies, as well. Those questions often overlap with controversial political issues, so that a more complex and difficult balancing act arises between judicial knowledge and independence, on the one hand, and political accountability, on the other.

One reform proposed early in the 20th century by the American Judicature Society was so-called merit selection. A non-partisan commission chooses a list of nominees, from which the governor appoints the judge, with no involvement by the state legislature. Thereafter, the people will vote at the next general election in a plebiscitary “yes-or-no” choice to retain or reject the appointee. Each judge so selected will have to stand in further periodic retention elections. This model was first enacted in 1940 in Missouri. Variants of the “Missouri Plan,” as it was dubbed colloquially, were adopted in about half of the states during the middle of the 20th century for intermediate appellate courts and supreme courts, though in fewer states for general trial courts. Since 1934, California has an inverted variation of the Missouri Plan, for courts above the Superior Court (trial court). The governor selects a nominee who must then be reviewed and confirmed by the state’s Commission on Judicial Appointments, which is composed of the chief justice of the California Supreme Court, the state attorney general, and a specified justice of the intermediate court of appeal. Again, the legislature does not participate.

While the Missouri Plan is still a popular reform proposal, it has come under fire by others who see it, with some justification, as an attempt by an unelected legal elite to entrench itself further in an isolated and unaccountable judicial bureaucracy. That opposition has manifested itself in increasingly divisive judicial retention elections and in some states, rejection of concrete efforts to institute the Missouri system. As to the former, while judges still overwhelmingly win retention elections, in California the vote in these elections has become closer. In the 1986 election, the chief justice and two associate justices of the California Supreme Court were rejected due to the public’s fury with the jurists’ perceived categorical hostility to application of the death penalty. Other critics complain that merit systems are a mirage, in that it is impossible to take partisan politics out of the process. They assert that political influence manifests itself in many ways through the structure of the system and the influence that the governor exerts through “citizen appointees” on the selection commission.

State courts generally have the same powers of judicial review regarding state constitutional law as federal courts have as to matters of federal constitutional law. If a state supreme court strikes down a state law as violating the state constitution, there usually is no review by the U.S. Supreme Court. The state court has acted under “adequate and independent state grounds,” which means that no federal constitutional interest is involved for further review. In addition, state courts can review state laws for their conformance to the U.S. Constitution, statutes, or treaties. Such decisions, whether for or against the state law, are usually subject to review by the U.S. Supreme Court.

In addition to their role in shaping ordinary civil and criminal law, much constitutional law is made through the state courts. One reason is because the U.S. Constitution provides only a “floor” of protection for individual rights. Moreover, the U.S. Supreme Court reviews a relatively small percentage of cases decided by all lower courts, including the 12 federal circuit courts, the 50 state supreme courts, and assorted other courts. State legislatures (and Congress) can expand those rights by statute, and state courts can do so through interpretation of their state’s constitution. While it is not always clear when or whose rights are expanded, rather than contracted, some state courts have been quite active in striking down state laws. For example, in abortion, school financing, same-sex marriage, and criminal procedure, among other topics, state courts have often gone further or, at least, been ahead of federal courts in defining constitutional rights. Compared to the last half of the 20th century, the U.S. Supreme Court has become more reluctant to lead constitutional change during the last couple of decades. This has refocused litigants’ attention on the state supreme courts, a trend that is likely to continue.

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

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Guest Essayist: Joerg Knipprath

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Under the Constitution, the only required court is the U.S. Supreme Court. The creation of lower federal courts has always been entirely at the discretion of Congress. Even if federal courts have jurisdiction, they can only hear cases specified in Article III, Section 2, of the Constitution. They are “limited jurisdiction” courts. However, the Constitution does anticipate the existence of state courts, which, in addition to their duties under state law, would perform the functions of federal jurisdiction if Congress chose not to establish lower federal courts. Even today, state courts can hear cases that involve federal jurisdiction, such as claims that arise under federal statutes or the U.S. Constitution, unless Congress has expressly made hearing that type of case exclusive in the federal courts. Congress has done that in regard to claims where the United States is a party, for example.

State courts, therefore, form the backbone of the American judicial system. Most laws are state or local laws, and most cases, civil and criminal, are heard in state courts. There may be state courts of limited jurisdiction, such as the Small Claims Court, but there is at least one level of “general jurisdiction” trial courts. In California, this court is called the Superior Court, organized by county. In other states, this may be called county court, district court or circuit court. In New York, this is called, rather bizarrely, the Supreme Court. These general jurisdiction courts may have separate departments, such as the probate division or the family law division. There may also be entirely separate specialized courts, such as juvenile courts or, in Delaware, the Chancery Court for business law cases.

In addition, many states have an intermediate appellate court system analogous to the federal circuit courts. These are typically organized by larger geographical areas. They, too, vary in names. In California, this is called the Court of Appeal for the 1st [etc.] District. In some states, this may be called the Appellate Department of the [insert name of general jurisdiction trial court]. All states have a final court of appeal. Usually, this is called [the state’s] supreme court. In New York, it is called the Court of Appeals, since, as noted above, New York calls its general trial court the supreme court.

In many states, as well as in the federal system, the role of intermediate appellate courts and the supreme court differ. Intermediate courts exist substantially to correct errors of law made by trial courts, so there is generally a right to appeal cases from the lower court. Supreme courts, on the other hand, are “courts of law, not of error,” where protecting litigants from the errors of trial courts is merely incidental to resolving significant legal issues for the broader public good. Thus, supreme courts are usually given great discretion by the legislature as to which cases they will review. The U.S. Supreme Court, for example, hears almost no cases on appeal. Rather, review is exercised by granting a writ of certiorari that orders the lower court to certify the record of the case to the Supreme Court for review. Many states follow the same approach. In California, only death penalty cases have mandatory appeal. Everything else is within the state supreme court’s discretion.

Federal judges are appointed by the President, with confirmation by a majority vote of Senators. With some exceptions for specialized, administrative law-type judges, such as the Tax Court, they serve during “good behavior,” i.e. potentially for life, subject to impeachment for constitutionally defined causes. At the state level, selection procedures for judges are so varied as to be incapable of complete description in a brief essay. A general overview must suffice. At the beginning of the country, a common model was to have legislative bodies appoint judges. Thus, the Virginia’s constitution of 1776 declared, “The two Houses of Assembly shall, by joint ballot, appoint judges of the Supreme Court of Appeals, and General Court, Judges in Chancery, Judges of Admiralty…[to] continue in office during good behavior.” This “popular control” was, at least in part a response to the distrust that many Revolutionary War-era Americans had towards the king’s appointed judges as officers of the Crown. Virginia is one of two states that retain legislative appointment in some form.

By the 1780s, a reaction had set in against legislative dominance under the first wave of state constitutions. Many states revised their constitutions over the next couple of decades. The new mode of selection of judges often replicated the U.S. Constitution. Thus, the Massachusetts constitution of 1780 stated that “All judicial officers…shall be nominated by the Governour, by and with the advice and consent of the Council [a body of nine members chosen by the two houses of the legislature jointly with a mostly advisory role to the governor]….” On the other hand, while judges in Massachusetts ostensibly served during good behavior, “the Governour, with consent of the Council, may remove them upon the address of both houses of the Legislature.” This easy removal maintained indirect popular control over the judiciary without having to resort to accusations of bad conduct needed for impeachment. Today, three states, not including Massachusetts, select appellate courts by gubernatorial appointment with legislative confirmation.

One odd characteristic of that Massachusetts constitution was that it permitted the legislative chambers, as well as the governor, to compel the Supreme Judicial Court to render formal opinions on “important questions of law, and upon solemn occasions.” This provision still applies in Massachusetts and a dozen other states. It calls upon that court to issue an “advisory opinion” even in the absence of a concrete dispute. This approach is used in various foreign systems, as well, typically those that follow the German model of having one specialized constitutional court that exercises judicial review. It is rejected under the U.S. Constitution for federal courts and in most state constitutions, which require that the judicial power only functions in concrete “cases or controversies” brought by a plaintiff who has suffered an actual injury and, thus, has standing to sue.

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

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Guest Essayist: Daniel A. Cotter

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This year’s Constituting America’s 90 Day Study has focused on state and local government and, for each state, has discussed the constitution that each state has adopted.  In every instance, the state constitution specifies the branches of government, including a judicial branch.  How state supreme courts work in relation to the United States Supreme Court is mostly a matter of jurisdiction, with the United States Supreme Court and  “such inferior Courts as the Congress may from time to time ordain and establish” created by the United States Constitution.

The Founding Fathers of our nation did not spend as much time debating and did not spend as much time drafting and discussing Article III, which created the federal courts and gave Congress extensive power to determine the structure of the judiciary.

Alexander Hamilton, expressing his views in the Federalist Papers, had a clear view of what powers the judiciary had and how they fit in the three branches of the new national structure.

In Federalist No. 78, Hamilton noted that the judiciary would be the weakest of the three branches because it had “no influence over either the sword or the purse, …It may truly be said to have neither FORCE nor WILL, but merely judgment.” With only the power of the word, and no enforcement powers, the Founders considered the judicial branch as dependent to some extent on the political branches to uphold its judgments.

The Federalist 78 also supported the notion that the nation’s judiciary would serve as lower than, and not superior to, the legislative branch in order only to function as interpreter and not maker of law; Alexander Hamilton in Federalist 78, “The interpretation of the laws is the proper and peculiar province of the courts.”  However, this is not to say that when the John Marshall Supreme Court announced its decision in Marbury v. Madison in 1803, that their finding that “It is emphatically the province and duty of the judicial department to say what the law is” should have been a surprise to the nation.  Hamilton in Federalist 78 stated clearly how the Constitution and other lower laws were to be assessed:

A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents.

State Courts

The state and local courts generally address and rule on cases and controversies that involve law and the constitution of that state.  However, in some instances, those state court rulings can be appealed and challenged in the federal courts.  If the issue is whether a state law violates the Constitution, then federal courts may hear the dispute.  In addition, in some instances, if the jurisdictional thresholds are met, then there might be dual jurisdiction.

An Early Clash

When John Marshall became Chief Justice of the Supreme Court in 1801, his former schoolmate, Spencer Roane, had already served as a member of the Virginia Supreme Court of Appeals for six years.  Marshall was a nationalist, his views developed at least in part from his service in the Revolutionary War and the deprivations he witnessed. Roane, who was aligned with Thomas Jefferson, was a strong states’ rights advocate.  The two clashed a number of times over the years, with Roane ruling in a case that Marshall had been an advocate, Pleasants v. Pleasants. However, Roane would engage in some nullification after Marshall became chief justice.  Roane refused to follow the decision handed down by the Marshall Court in 1815, Martin v Hunter’s Lessee.  Later, after the Court issued McCulloch v. Maryland, which addressed the United States Congressional powers vis-à-vis the state legislative powers in a controversy over the legality of the national bank, Roane wrote several editorials under pseudonyms attacking the Marshall Court’s decision. Roane also wrote a number of articles that where precursors to the Nullification Crisis.

Andrew Jackson

President Andrew Jackson did not care for the Marshall Court 1832 decision, Worcester v. Georgia, which addressed Native Americans rights and tribal sovereignty.  Jackson reportedly stated, “John Marshall has made his decision; now let him enforce it!”  While there is no direct evidence he uttered those exact words, he did write in a letter to John Coffee that “the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.”

Conclusion

The federal and state courts are separate entities with different jurisdictional limits and powers.  While state issues might be litigated in federal courts if jurisdictional requirements are satisfied, United States Constitutional issues are ultimately the federal courts to decide.  The Founders at the national and state levels expected the third branch, while co-equal to the other branches, to be the least powerful branch and interpreters only of laws.

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Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. 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.

Guest Essayist: Gary Porter

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What is the purpose and impact of Article IV, Section 4 of the U.S. Constitution in that “The United States shall guarantee to every State in this Union a Republican Form of Government”? How does this form relate to the republican (representative) styles such as Commission Form, County Administrator, Elected Executive, City-County Consolidation, Constitutional Row Offices or Home Rule Authority to ensure power remains in the hands of each American, preventing a monarchy or aristocracy in each state and local government?

Further, what is a republic, why must Congress guarantee each state has and maintains a “Republican Form of Government” and how does it do this?

To the Framers of the Constitution, democracy was a hideous form of government. The colorful Fisher Ames, in one of his more measured criticisms, wrote: “Democracy, in its best state, is but the politics of Bedlam; while kept chained, its thoughts are frantic, but when it breaks loose, it kills the keeper, fires the building, and perishes.” Monarchy was obviously unacceptable; a confederation had been tried and found wanting; this left a republic. But a republic which, according to Dr. Benjamin Franklin, must be “kept.” The Constitution’s Article 4 Section 4 contributes to the “keeping.”

The first difficulty Congress faces in guaranteeing each of the fifty States has and maintains a “republican form of government” involves the lack of a consensus over what signifies this “republican form of government.” There never has been a consensus and likely never will be.

James Madison, writing as “Publius,” took a stab at the definition of a republic in 1787/88. Across several of the Federalist essays he identifies seven “republican” attributes. These are neatly summarized by Scott T. Whiteman in his short essay What is a Republic Anyway?[i]

They include:

  1. A government operating under separation of powers; Federalists Nos. 9, 47, 28, 76
  2. Representatives governing during a limited term and/or during good behavior; Nos. 9, 39
  3. Representatives elected by the people; Nos. 9, 39
  4. Power residing in the People; No. 39
  5. A government that is deliberative in action; No. 71
  6. Acknowledging the right of the people to alter or abolish their government; No. 78
  7. A government that prohibits grants of entitlement or nobility; No. 84

Contemporary authors believe additional attributes should be included, such as the Rule of Law and absence of a Monarchy.[ii]

It is easy of course to distinguish a republic from direct democracy, but must all of Madison’s seven features be present before a political entity can be declared “republican?”

When a U.S. territory applies for statehood, Congress first passes an Enabling Act which gives the applying territory the authority to draft a proposed constitution, which is then approved by the state’s citizens and submitted for review by Congress to ensure it reflects the “republican form.” Beyond allowing Congress to ensure the basic requirements of republicanism are met, this also provides Congress the opportunity to identify anything else it objects to in the way the state intends to conduct its affairs. On rare occasions Congress has insisted upon changes to the proposed state constitution before admission, such as when Congress insisted that Utah (the 45th state) first prohibit polygamy.[iii] Similar polygamy prohibitions were required of Oklahoma (46th state), New Mexico (47th state), and Arizona (48th state).

How does Congress ensure a state maintains its republican form? Here is where it gets sticky.

In 1841, Rhode Island was still operating under a government established by their royal charter of 1663. The charter strictly limited suffrage and made no provision for amendment. Groups protesting these restrictions in the charter held a popular convention to draft a new constitution and to elect a governor. In response, the existing charter government declared martial law and set out to “put down the rebellion” (called the Dorr Rebellion, after ringleader Thomas Dorr). One of the “rebels,” Martin Luther (no relation to the 1517 reformer), whose house was damaged during a search by law officers, brought suit claiming the old state government was not “a republican form of government” and all its acts, including its declaration of martial law, were thereby invalid. In Luther v. Borden. (1849)[iv], the Supreme Court declared in dictum that interpretation of the Guarantee Clause is a political, not a judicial question. Said another way: a “Republican Form of Government,” like “High Crimes and Misdemeanors,” is whatever Congress says it is. As noted in the Heritage Guide to the Constitution, “Citizens of a state who believe their state government has departed from the “republican form” should apply to Congress for relief rather than to the courts.”[v]

More modern charges of departure from a “republican form” involve the issue of popular referendums, which critics say embrace direct democracy. By way of review, in a referendum, the voters decide a policy issue outside the purview of their elected representatives. A referendum obtaining a majority vote generally goes into effect without further action by the legislature. The use of initiatives and referendums is written into the constitutions of twenty-six states, particularly those in the west, and these states contain over fifty percent of the U.S. population so many Americans encounter them. Popular initiatives, referendums, or popular recall of elected representatives are admittedly all forms of direct democracy, but does the use of one mean the government is no longer republican? Every state except Delaware ratifies state constitutional amendments through a vote of their citizens rather than by their elected representatives. This is similar to one of the two methods of ratifying a U.S. Constitutional amendment, does this depart from “republicanism.” No one has complained of this to the courts. Ironically, as morbid proof that we don’t have a democracy in America, in the thirty-one states where voters popularly- approved constitutions prohibitions of same-sex marriage, all it took was one Supreme Court decision (Obergefell v. Hodges) to overturn them all.

Turning to local government and the question of republicanism, we find that local government can take many forms.

In the Commission form of government, often encountered in cities or counties, voters elect a small commission, typically of five to seven members who comprise the legislative body of the city or county and, as a group, are responsible for taxation, appropriations, ordinances, and other general functions. Individual commissioners are also usually assigned specific executive responsibilities such as public works, finance, or public safety. This form of government thus combines legislative and executive functions in the same body.

In the County Administrator form, an Administrator is usually appointed by an elected council/commission. The Administrator then is responsible for administration of all governmental departments, subject to the council’s control.

The Elected Executive form is similar except that the Executive is elected by the polity instead of being appointed by the council or commission.

Constitutional Row Officers derive their name from the fact that the departments were first listed in a row on election ballots. In the Commonwealth of Pennsylvania, for example, row officers include: Clerk of Court, Controller, Coroner, District Attorney, Prothonotary, Recorder of Deeds, Register of Wills, Sheriff and Treasurer.

Home Rule Authority describes the power of a local city or county to set up its own system of self-government without requiring a charter from the state. Full home rule is allowed in thirty state constitutions and limited home rule in another nine.[vi] A city or county that adopts a home rule charter has the ability to amend its governmental organization and powers to suit its needs; in essence, they establish a local constitution.

As you can see, each of these forms embraces a republican form of government, at least in that elected representatives are used for day-to-day governing rather than involving the people themselves.

According to the U.S. Census Bureau, in 2012, there were 89,004 local governments in the United States.[vii] This included such things as school boards and regional planning authorities.[viii] Compare this with the fact that there are only 50 state governments and one (albeit ginormous) national government and you can see where the bulk of governing takes place in these united States: at the local level. Americans interested in serving their fellow citizens are advised to set their sights on local government. However, a brief and certainly not statistically significant analysis of current U.S. Representatives found only three in ten first served in local government. Twice as many held their first elective office in one of the 7,383 state legislature seats (nationwide).[ix]

While many Americans seem to give little attention to their national government, even fewer are interested in their local governments, particularly who is to represent them in those governments and how they actually govern. Voter turnout in national elections is alarmingly low, but turnout in state and local elections even worse;[x] some school board and city council members have reportedly been elected by only 10-15 percent of the eligible voters. And elections at the state and local level are often decided by amazingly small margins, even by a single vote.[xi] Our citizens’ lack of interest in local government can be confirmed by attending or viewing any televised city council or county board of supervisors meeting. There, with few exceptions, you’ll find a nearly empty room with the council members speaking, if to anyone but themselves, to a small handful of citizens. This is ironic since the day-to-day lives of Americans are arguably more influenced by local laws, codes and ordinances than those of their state or nation, local zoning laws being a prime example. On the other hand, polls show more Americans (71%) trust their local governments than their state governments (62%).[xii]

The cry of: “take back our democracy” is often heard these days, particularly from many on the political left. It is a silly notion, considering that our republican form of government is what is really at stake. But the phrase is useful; it brings in donations, lots of donations. Instead of waving “take back our democracy” signs , might I instead suggest we form a line and register as candidates for every elected office, from dog-catcher on up?

Next time you see your Congressman or Congresswoman, ask them how Congress guarantees to each state a republican form of government and see what response you get.

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 a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

 

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[i] https://www.theamericanview.com/constitution-course-supplemental-assignments/what-is-a-republic-anyway/.

[ii] Heritage Guide to the Constitution, David F. Forte and Matthew Spalding, ed., Washington, D.C. 2014, Guarantee Clause, p. 369.

[iii] https://en.wikipedia.org/wiki/Utah#Utah_Territory_(1850%E2%80%931896).

[iv] Luther v. Borden. Luther v. Borden, 48 U.S. (7 How.) 1 (1849).

[v] Heritage Guide, p. 370.

[vi] https://en.wikipedia.org/wiki/Home_rule_in_the_United_States.

[vii] https://www.census.gov/newsroom/releases/archives/governments/cb12-161.html.

[viii] The 89,004 includes 3,031 counties, 19,522 municipalities, 16,364 townships, 37,203 special districts and 12,884 independent school districts.

[ix] https://en.wikipedia.org/wiki/List_of_United_States_state_legislatures.

[x] https://www.governing.com/topics/politics/gov-voter-turnout-municipal-elections.html.

[xi] https://www.npr.org/2018/11/03/663709392/why-every-vote-matters-the-elections-decided-by-a-single-vote-or-a-little-more.

[xii] https://news.gallup.com/poll/195656/americans-trusting-local-state-government.aspx.

Guest Essayist: Bethany Marcum

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Known as “The Last Frontier,” Alaska was the forty-ninth to ratify the U.S. Constitution and be admitted to the United States. The Alaska State Constitution currently in use was actually ratified in 1956 before Alaska entered the Union, and went into effect upon statehood January 3, 1959

While there are in theory strict limits on federal governing powers as laid out in the Tenth Amendment to our U.S. Constitution, in the real world of at least one state, Alaska, the federal government wields enormous power and control. To understand how this came to be, one must look at Alaska’s history.

The area now designated as the state of Alaska was originally inhabited by indigenous people. Russians and European explorers visited and settled in the 1700s. Expeditions found the region rich in natural resources, with particular interest to the fur traders of that day. Russian settlement grew, but in 1867, the area was purchased from Russia, and became a department of the U.S. government.

The military was the most obvious presence in Alaska until the 1890s when gold was discovered. That brought a rush of miners and other settlers, causing much activity, and reorganizing the region into a federal government district.

In 1912, another reorganization designated the area as the Territory of Alaska. As airplanes became more prominent, settlement continued away from the road system, and the population increased.

Due to its strategic location, Alaska was very important during the war years and as it grew, so did a movement for statehood. The issue caused fierce debates. The state’s small population relative to the rest of the country made it obvious that residents couldn’t produce the revenue needed to develop the immense land mass and to create a viable economy. The rest of the country feared Alaska could not even take on the responsibility of creating a formal state government.

Eventually, however, statehood proponents prevailed and on January 3, 1959, Alaska entered the union as a full-fledged state. But it came at a high price: the federal government retained title to the majority of lands. In fact, even today, over 60% of the land in Alaska is owned by the federal government.

Contentious deliberations over land and resource ownership and control continued for decades, resulting in two landmark federal laws, the Alaska Native Claims Settlement Act in 1971 and the Alaska National Interest Lands Conservation Act in 1980. Even so the problems were not resolved; today, management of the resources on lands in Alaska continues to create friction between D.C. agencies and the state. The most recent example of this was the case of Sturgeon v. Frost, heard twice by the U.S. Supreme Court. The decision was a victory for Mr. Sturgeon and the State of Alaska, over the National Park Service. Still, overzealous federal agencies continue to lock up Alaska’s land and resources as political winds blow first one direction, then the other.

The population of Alaska is small even today, and just as feared during the statehood debates, the 49th state remains heavily dependent on the federal government. This dependency comes in many forms, from federally subsidized bypass mail for sparsely populated Alaskan villages (essentially an air freight service), to federal obligations to the state’s indigenous people through special health care and other programs.

Due to the large amount of federal land, and as a result of the federal government’s role in funding so many programs and projects in Alaska, it is often the federal government which makes the rules—not the state.

This has led to great difficulty for Alaska in developing its resources. In the area of natural resource development, federal overreach is particularly devastating. Resource development is the predominant driver of Alaska’s private economy. Lack of infrastructure, a harsh climate and distance from markets and populations have resulted in Alaska having very few industries. Most of its non-governmental economy is based in resources: oil and gas, mining, and commercial fishing. As the federal bureaucracy grows and with it, the number of regulations on these industries, the ability for Alaska to move toward less federal dependency is reduced even further.

If Alaska is ever to take its rightful place as a strong and independent state, it must be freed from the constraints of federal overreach, and from the lures of federal funding. It must be allowed to develop and manage the land and resources within its borders so that it can create the revenue needed to support its residents. Only then will Alaskans be truly free to govern themselves.

Bethany Marcum has made Alaska her home for over 20 years. She currently works as Executive Director of the Alaska Policy Forum. She also serves as a citizen airman in the Alaska Air National Guard. She worked as legislative staff for State Senator Mike Dunleavy from 2013 to 2017. She is currently the Alaska Republican Party Region V Representative and has held a variety of other positions at the district and state level. She is a former president, long-time board member and life member of the Alaska Chapter of Safari Club International and is a life member of the NRA. She serves in her church with the children’s ministry and is a volunteer “big” with Big Brother Big Sisters of Alaska. She and her husband Conley enjoy hunting together.

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Guest Essayist: Tony Williams

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The state and constitution of Kansas was born amid arguably the most contentious controversy than any other state. The 1850s witnessed fierce national debates over slavery and its expansion westward with such key events as the Compromise of 1850, the furor over the Fugitive Slave Act and slavecatching, the Dred Scott (1857) decision, the Lincoln-Douglas debates, and the Harpers Ferry raid. These and the violent and bloody birth of Kansas helped spark the descent into the destructive Civil War.

The Kansas controversy originated in the Mexican War and the peace treaty ceding an immense tract of land to the United States in the West. Partisan and sectional arguments tore at the nation’s political system as proposals such as the Wilmot Proviso offering to ban slavery in all the territory acquired from Mexico. Finally, the congressional statesmen engineered a compromise in 1850 to save the republic which included “popular sovereignty” in New Mexico and Utah, meaning that the territorial legislatures could allow slavery though no one expected slavery to take root in those areas.

In 1853 and 1854, Stephen Douglas of Illinois engineered the Kansas-Nebraska bill. Settlers in search of good agricultural land had moved to the area, and Douglas supported a transcontinental railroad running through that part of the country. Both required the area to be organized into a territory for statehood. He was agnostic on the morality of slavery and wanted to leave it up to the territorial legislatures according to “popular sovereignty” which explicitly contradicted the Missouri Compromise of 1820 for the territory.

The Congress narrowly passed the bill into law on May 30, 1854. The sectional breach in the Democratic Party damaged it for decades, while the sectional divide within the Whig Party was fatal, paving the way for the birth of the Republican Party. More immediately, abolitionist New York Senator William Seward asserted: “I accept it in behalf of the cause of freedom. We will engage in competition for the virgin soil of Kansas, and God give victory to the side which is stronger in numbers as it is in right.” Southern Democrat Senator David Atchison of Missouri agreed that, “We are playing for a majority stake….The game must be played boldly.”

Northerners and southerners rushed into Kansas to make it a free or slave state respectively. Pro-slavery southerners won the first round as Missourian “border ruffians” crossed into Kansas, cast thousands of illegal ballots, and elected a pro-slavery territorial legislature in Lecompton. It legalized slavery and passed a harsh slave code. President Franklin Pierce and the Democratic Senate endorsed this government. Meanwhile, the House of Representatives endorsed a rival free-state government that was established in Lawrence, called for a constitutional convention for the territory, and adopted a free constitution in Topeka in 1855.

Violence erupted in the territory. Radical abolitionist John Brown and his band murdered five pro-slavery southerners in cold blood. Southerners sacked and burned Lawrence. Other deadly incidents provoked the nickname “Bleeding Kansas” to describe the volatile situation. The violence in Kansas spread to Congress during a debate over the issue as South Carolina Representative Preston Brooks caned Massachusetts Senator Charles Sumner nearly to death.

In 1857, the Lecompton legislature called for a state constitutional convention that wrote a pro-slavery document. Both sides boycotted the other side’s referendum on the Lecompton constitution with pro-slavery voters supporting it in late 1857 and free-state voters opposed.

In 1858, the U.S. Senate voted for the Lecompton Constitution, but the House defeated it replete with an indecorous fistfight. The constitution was sent back to Kansas voters who rejected it, leaving the state’s status in limbo. At the same time, yet another constitution, the free-state Leavenworth Constitution, provided for the natural rights of African Americans but was also rejected by the Congress.

The following year, Kansans adopted the Wyandotte Constitution, which was approved by Congress in 1860 as the South seceded. Congress finally admitted Kansas as a free state and banned slavery on January 29, 1861. It was the 34th state in the Union. This constitution opened with a preamble asserting the significance of civil and religious liberty: “We, the people of Kansas, grateful to Almighty God for our civil and religious privileges, in order to insure the full enjoyment of our rights as American citizens, do ordain and establish the Constitution of the State of Kansas.” The constitution remains the constitution of Kansas though it has been amended since ratification including the addition of women’s suffrage.

The Kansas constitution was born in one of the most tumultuous periods of American history related to the causes of the Civil War. Nevertheless, it endorsed the maxims of a free society and was part of the confirmation of the principles of the Founding that occurred with the Civil War and ending of slavery in the United States.

Tony Williams is a Senior Fellow for the Bill of Rights Institute and a Fellow for Constituting America. He is the author of six books including Washington and Hamilton: The Alliance that Forged America.

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Guest Essayist: Will Morrisey

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Such radically changed circumstances, which would lead to the world wars of the next century, presented American strategists with a set of problems noticeably different from those seen by Washington and his successors. Would the strengthening empires block American trade? Would they again threaten American shores, as they had not done since 1812? Further, having fought a devastating civil war, we were less likely than ever to invite the prospect of another war on our own territory—especially given the increasingly devastating power of modern weapon wielded by the well-organized and trained mass armies raised by modern states. We needed to re-think the question of strategic depth, a question we thought we’d answered by turning the middle part of North America into an empire of liberty. And we also needed to re-think our policies regarding international commerce. All without eradicating the constitutionally legitimate powers of the state governments.

American strategists proposed several policy choices. The first, advocated by German immigrant and old Republican Party ally of Abraham Lincoln, Carl Schurz, was simply to continue Washington’s policy: to eschew not only empire beyond our own continent (“overseas empire,” as he called it) but even to eschew any major strengthening of the military—this, on the traditional grounds that big military establishments threaten republican regimes. By far the most distinguished American statesman to advocate this policy in the next century was Herbert Hoover, whose “magnum opus” (as he called it), Freedom Betrayed, lays out an argument for staying out of the Second World War, and for what critics called ‘isolationism’ generally. Whatever one thinks of this as a realistic foreign policy for the modern world, it would surely have kept American federalism intact.

The second, opposite, policy was advocated by the young Indiana Republican Senator Albert J. Beveridge, who called for a vast imperial project based upon the alleged superiority of the white race, a notion itself based upon the ‘race science’ that formed part of early Progressivism. The most famous of Beveridge’s speeches remains “The March of the Flag,” delivered at a Republican Party convention in Indiana. In it, Beveridge called for American conquest of the rest of the Americas and their incorporation into the United States—not, to be sure, as equal states, but as colonial territories. At the time, theories of racial superiority were very much a part of the Progressive movement, and Beveridge might be described as the most vocal representative of the militarist wing of Progressivism, which ranged from the militarism of Beveridge to the pacifism of Jane Addams. This policy would have ended the American practice of considering newly-acquired territories as future states, instead turning the New World into a facsimile of European empires.

It took President Theodore Roosevelt to find a more realistic solution to the problem, the one that has prevailed for more than a century. Theodore Roosevelt advocated the use of a greatly-expanded navy, which he eventually succeeded in obtaining, and peacetime military conscription for the army, which he hinted at but never formally proposed. These forces, but especially the navy would be used not so much for imperial expansion but for obtaining naval bases throughout the world, usually but not always with the consent of foreign governments. These bases would counterbalance the much more expensive (and, as it turned out, untenable) imperialism of the Europeans. While happy to seize Cuba and the Philippines from the Spanish, he had no interest in retaining them, but he very much liked the idea of establishing naval bases at Guantanamo and Subic Bay. As for permanent acquisitions, he intended to hold on to Hawaii and Puerto Rico as outposts complicating foreign naval attack on the Pacific and Atlantic coasts.

To reinforce America’s opposition to European imperialism in the New World, and to answer Beveridge, Roosevelt also propounded his well-known “Corollary” to the Monroe Doctrine, stipulating an American right to intervene in Latin American countries if they fell down on their debt payments to European nations. Such refusal to repay loans, if it became “chronic” (as Theodore Roosevelt put it), would invite European military intervention into the Western Hemisphere—exactly the thing the original Monroe Doctrine was intended to discourage. This policy soon provoked anger from the people it was intended to protect, and President Franklin Roosevelt replaced it with his “Good Neighbor” policy in the 1930s.

From this perspective, Theodore Roosevelt’s foreign policy becomes quite coherent: Drive the weakened Spanish imperialists out of the Caribbean and the Philippines while blocking other empires (especially the Brits and the Germans) from seizing them; then spur the peoples of the newly-acquired countries to govern themselves. This meant recurring to the old American policy of regime change (first used by the Washington Administration in the southeastern states in its dealings with the Cherokee and other nations in that area), while obviating the need to (quite implausibly) make them into U.S. states and avoiding their (un-American) use as permanent colonies of our own. Add the Panama Canal, linking the Atlantic and Pacific oceans for both trading and military purposes, and you see that Theodore Roosevelt aimed at recovering America’s strategic depth under the circumstances caused by the new technologies of war.

Such a policy held out the prospect of retaining American federalism while avoiding ‘containment’ strategies Great Britain and other regimes, then and in the future, would deploy against us.  American federalism was compromised in any event, by Presidents Wilson, FDR, Lyndon Johnson and their allies, but this was done for domestic reasons, although sometimes under the cover of the quite different policy of liberal internationalism, which looks forward to the weakening not only of American federalism but of American sovereignty altogether.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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Guest Essayist: Will Morrisey

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For one hundred years—roughly between the ratification of the United States Constitution and 1890—the “extended republic” James Madison described in The Federalist did indeed extend, from sea to shining sea. As Americans settled each new swath of territory they sought and received recognition as states of the Union, equal to all states that preceded them, including the original thirteen. This great period of American empire-building far exceeded anything done subsequently (for example, the acquisition of territories from Spain in the late 1890s) and proved far more lasting than the ‘scramble for empire’ undertaken by the European states during that time. America became what Jefferson wanted it to be: an “empire of liberty,” that is, a union of free and equal states, with republican regimes securing the natural rights of all its citizens in principle and of most if not all in practice.

The question of the exact terms and conditions of American federalism, especially the status of the states within it, was answered in principle by Abraham Lincoln in his speeches and in practice by the Union armies in the Civil War. The pseudo-republican oligarchies of the states that formed the Confederacy were defeated, although they reconstituted themselves to a substantial degree, in different form, after Reconstruction ended. States’ rights could no longer serve as a carapace for slavery, although it would so serve for legal racial segregation for much of the next century. But the Union had survived.

The year 1890 saw another, less stark but still unsettling crisis. For the past century, the migrations of Americans to the West had relieved the older states of the need to address the worst economic and social tensions modern industrial societies had faced. Now, however, the United States effectively had become an island, bordered by oceans on each side, the Caribbean in the south, and to some extent the Great Lakes in the north. It was a giant island, but an island nonetheless. With immigrants still coming in from Europe, with industrialism and urbanization intensifying in the East and Midwest, what would become of the country? Could the regime of commercial republicanism sustain itself against populist and socialist ideologues who sought to exploit these pressures? Could federalism withstand pressures to ‘nationalize’ everything—that is, bring it under the rule of the central government to the diminution of the state governments?

The historian Frederick Jackson Turner framed perhaps the most high-level expression of this anxiety. In his 1893 paper presented to the American Historical Association’s annual meeting in Chicago, “The Significance of the Frontier in American History,” Turner argued that it was the settlement of the frontier, fostering the character of Americans as independent, self-governing yeoman farmers, which had (to coin a phrase) made America great. Not so much Christianity, not the principles of the Declaration of Independence, not the Constitution, and surely not any biologically-based racial superiority over the American Indians, but the frontier itself, the virtues the cultivators cultivated along with their crops, gave Americans the moral fiber needed to make them a strong, free, and united people. With the closing of the frontier, the elimination of the conditions of this character-building way of life, would Americans not succumb to moral decline, and ultimately lose both their empire and their republicanism? The ‘Turner thesis,’ as it came to be called, galvanized academic and even journalistic discussion for decades thereafter.

Not only professors and pundits saw this problem, however. As it happened, an ambitious young politician named Theodore Roosevelt had already published two volumes of his book The Winning of the West, in the years immediately preceding Turner’s study. The young civil service reformer from New York City, who had ‘gone West’ himself, to the Dakotas, after his beloved wife’s death in 1884, also argued for the importance of the frontier in forming the American ethos through its rugged way of life. Roosevelt understood the West not so much as a land for peaceful if rugged farming as an arena for warfare pitting semi-civilized Americans against uncivilized Indians. The West built not only the steady, yeoman virtues of Jeffersonian agrarianism but also and above all the martial virtues of George Washington. Whereas Europeans (so long as they stayed in Europe) could only exercise those virtues against other civilized nations, with all the moral hazards attendant—most spectacularly—in Napoleonic despotism; and whereas if Europeans abandoned such ambitions, as proposed in projects for “perpetual peace” such as that proposed by the philosopher Immanuel Kant, only to risk a softening of spirit, moral decay, Americans had solved the problem by advancing civilization without colonization—that is, without keeping newly-won territories in political subservience to the ‘Mother Country.’

Whether one argued for Turner’s yeomanry or Roosevelt’s militias and posses, or some combination of them, as the inspiriting conditions of American courage and self-government, the dilemma of the 1890s remained the same: How will Americans perpetuate their republican regime and empire, now that the frontier has closed?

Roosevelt also saw another danger, outlined in the 1890s by the British naval strategist, Alfred Thayer Mahan. As far back as 1787, in The Federalist, Alexander Hamilton had argued that oceans are as much highways as they are barriers; as a Caribbean-born transplant to New York, he needed no book to teach him that. By 1890, technology had made this obvious to everyone, as steam-powered vessels having replaced the old sailing ships and telegraphs making ‘messaging’ nearly instantaneous. These improved means of transportation and of communications had strengthened European empires; by Queen Victoria’s Diamond Jubilee in 1897, Britannia not only ruled the waves but about one-fourth of the land on earth and about one-fifth of its population, while France, Germany, Russia, Austria-Hungary, Turkey, and even Belgium had substantial holdings as well.

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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To date, fifty states have been admitted to the United States, with the last one, Hawaii, having been admitted on August 21, 1959.  However, in addition to the states, the United States has a number of major territories, including American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands.

The Establishment of a United States Territory and Its Governance

As many of the essays after the first states’ ratification of the Constitution have described, the way to statehood has typically been through first being a territory or part of a territory, and then seeking statehood.  A territory is established by the passage of an organic act to organize it. Many have been enacted by Congress over the nation’s history, with the first being the Northwest Ordinance, passed in 1787 by the Continental Congress.

Current Major Territories and History

Currently, the United States has five major U.S. territories: American Samoa, Guam, the Northern Mariana Islands, Puerto Rico, and the U.S. Virgin Islands. Each such territory is partially self-governing that exists under the authority of the U.S. government.

Pursuant to the Organic Act of 1900, or Foraker Act, Puerto Rico became a territory of the United States. Puerto Rico became a possession pursuant to the Spanish-American War.  It has been a territory since that act passed.  It has often been mentioned as a new state, but no serious effort has been made by Congress.

Pursuant to the Organic Act of the Virgin Islands of the United States of 1936, the United Stated added the U.S. Virgin Islands to its territories.  In 1950, Guam became a territory pursuant to the Guam Organic Act of 1950.  In 1954, the Revised Organic Act of the Virgin Islands replaced the original 1936 act.

The Northern Mariana Islands have been administered by the United States since Japan surrendered in World War II, pursuant to Security Council Resolution 21.  The people of the Islands have by referendum voted to join with Guam, but in 1969, Guam rejected the proposal. American Samoa has no organic act, and as such is considered unorganized.  Despite that, American Samoa has remained connected to the United States. In addition to the five major territories, the United States has a number of other territories that are uninhabited.

Limitations of Territories

Territories are not states and do not have full recognition that states enjoy.  Notwithstanding not being states, each territory can send a delegate to the House of Representatives. With the exception of American Samoa, whose residents are U.S. nationals, those in the other four territories are U.S. citizens. Citizens of the territories can vote in primary elections for president, but they cannot vote in the general elections for president.

In 2016, the Supreme Court of the United States held, in Puerto Rico v. Sanchez Valle, 579 U.S. ___ (2016), that territories do not have sovereignty.  In the aftermath of Hurricane Maria, the Puerto Rico governor and others argued that the territories were powerless and had little understanding or support.  As noted, they send delegates to the House, but have no vote, and cannot vote in the general election for president, despite being citizens in four of the five territories.  While they have some self-governance, they do not have sovereignty, and the reality is that there are significant limitations when a land is a territory rather than a state.

Conclusion

In our nation’s history, many of the states that today constitute the fifty were originally territories or parts of larger territories.  Thirty-one territories or parts have eventually become states.  For example, from the Missouri Territory, we have Missouri, and then from the unorganized territory once Missouri became a state, we later had Iowa, Nebraska, South Dakota and North Dakota, most of Kansas, Wyoming, and Montana, and parts of Colorado and Minnesota become states.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. 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.

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Photo Credit: Everett Historical

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Admitted to Union July 10, 1890, Wyoming became the forty-fourth state to ratify the U.S. Constitution. Known as “The Equality State,” it currently uses the Wyoming State Constitution adopted in 1889.  While amended many times, it is the only state constitution Wyoming has had in its history, last amended in 2008.

Becoming a State

In 1869, the Wyoming Territory organized after Congress passed an act creating the territory in July 1868, with the territory seeking statehood from the beginning. Despite statehood being more than thirty years in the territory’s future, Wyoming’s first territorial governor, John A. Campbell, signed the “Female Suffrage” in 1869 and Wyoming became the first territory, then when admitted as a state, to grant voting rights to women.

In addition to that act, Wyoming has been a leader in equal rights from its organization as a territory.  Women served on juries beginning in 1870, the first female court bailiff was in Wyoming in 1870, and the first female governor in the nation, Nellie Tayloe Ross, was sworn into office in January 1925.

In 1888, the Territorial Assembly petitioned Congress for statehood, but that effort was not successful.  Despite not being approved for statehood in 1888, Wyoming Territory Governor Francis E. Warren and other territorial leadership decided to hold an election for delegates to a constitutional convention.  On September 30, 1889, the Constitutional Convention was held and a state constitution was drafted that was submitted to voters. A short time later, on November 5,1889, the constitution was approved by an overwhelming majority of Wyoming voters, 6,272 to 1,923.

With a new constitution, the Wyoming Territory pushed for statehood again, and after President Benjamin Harrison signed Wyoming’s statehood bill, Wyoming became the 44th state on July 10,1890.

The Wyoming Constitution

The state has been known as “The Equality State” from its early days, with the Suffrage Act passed and also the state constitution, which provides at Article 1, Declaration of Rights, Sections 2 and 3 the strong belief in equality, stating:

Sec. 2. Equality of all. In their inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.

Sec. 3. Equal political rights. Since equality in the enjoyment of natural and civil rights is only made sure through political equality, the laws of this state affecting the political rights and privileges of its citizens shall be without distinction of race, color, sex, or any circumstance or condition whatsoever other than individual incompetency, or unworthiness duly ascertained by a court of competent jurisdiction.

Forty-six delegates assembled in Cheyenne, Wyoming, in September 1889, and on September 30, 1889, the delegates signed the constitution.  Although amended on numerous occasions (the changes can be seen in the document at https://soswy.state.wy.us/Forms/Publications/09WYConstitution.pdf), the bulk of the Wyoming Constitution has remained unchanged since its origins almost 130 years ago.

The Wyoming Constitution has other rights that are consistent with the United States Constitution Bill of Rights, and its right to bear arms provision makes it clear it is a right to defend oneself and the state, providing:

Sec. 24. Right to bear arms. The right of citizens to bear arms in defense of themselves and of the state shall not be denied.

In addition to the extensive Declaration of Rights, the Wyoming Constitution is very detailed in terms of limitations on the state’s public indebtedness.

Conclusion

Wyoming became the 44th state to join the United States, but in equal rights, stands out as the first, earning its nickname as “The Equality State.”  Wyoming is also known as the “Cowboy State” in homage to its use of the bucking bronco as its symbol.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. 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.

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Guest Essayist: Joerg Knipprath

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When the Constitution was submitted to the American people in conventions in the several states, many objected that the lack of a bill of rights made the general government a dangerous tool of oppression. They looked to English antecedents, such as the English Bill of Rights of 1689, their historical colonial charters, many of which had contained express reservations of rights, and their existing state constitutions, many of which–but not all–had bills of rights. Some supporters of the Constitution, such as Alexander Hamilton, considered bills of rights empty verbiage at best, and dangerous implications of general governmental powers at worst. Moreover, Hamilton pointed out–in some tension with his previous argument– that the Constitution already contained limitations on the general government, for example, in the important provision in Article I, Section 9, against ex post facto laws. However, the need to get favorable outcomes in some closely-divided conventions persuaded the Constitution’s supporters to agree to promote a bill of rights once the new government was successfully established.

The First Congress set to that task. The initial set of amendments drafted by Representative James Madison were distilled from those submitted by the various state ratifying conventions, with the author declaring to Congress “I shall not propose a single alteration but is likely to meet the concurrence required by the constitution.” While most of those changes dealt with the powers of the general government or with limits to be imposed on that body, one group did not. Hamilton had also criticized the fact that the New York constitution, like that of some other states, lacked an explicit bill of rights. If anything, he noted, states needed bills of rights more than the federal government did, because they were governments of general and inherent legislative power, while the federal government was one of limited and delegated powers. For the former, then, any restriction on its powers had to be express.

Madison proposed to amend Article I, Section 10, of the Constitution (which dealt with restrictions on state governments), to add, “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.” The House Committee of Eleven, to whom Madison’s proposal was referred, modified his language somewhat and added a protection of the freedom of speech. The House of Representatives made several changes. First, it changed the basic approach. Rather than revise the text of the original Constitution by interlineation of these changes, the original text would remain, and the changes would be separated and formally styled “Amendments.” Second, it rephrased the proposal as “ARTICLE the FOURTEENTH,” which declared, “No State shall infringe the right of trial by Jury in criminal cases, nor the rights of conscience, nor the freedom of speech, or of the press.”

Two weeks later, the Senate passed its own version, which omitted all references to limitations on state governments. The Senate’s version of the proposed amendments was, in essence, what was finally submitted to the states for approval. It is not entirely clear why the Senate dropped the restriction on state governments, though their selection by the state legislatures may have made Senators reluctant to impose express limits on those bodies. As a result, the Bill of Rights (and the 27th Amendment, which was proposed then, but failed to get the requisite state support until 1992) is concerned entirely with powers of the general government and with limits thereon.

In 1833, Chief Justice John Marshall, in Barron v. Mayor of Baltimore, confirmed that neither the Takings Clause of the Fifth Amendment at issue there, nor any other provision of the Bill of Rights, applied to the states. Referring to the constitutional settlement of 1789 that resulted in the adoption of the Bill of Rights, Marshall noted that the amendments “demanded security against the apprehended encroachments of the general government–not against those of the local governments.” There matters remained, formally, for nearly a century. Any restrictions on state governments, other than those in Article I, Section 10, had to come from the respective states’ constitutions.

In a society as locally-focused as Jefferson’s “Yeoman Republic” of artisans and farmers, such an arrangement made sense. But with the growing industrialization and its accompanying commercial intercourse shaping stronger regional and–more gradually, national–bonds, a new constitutional settlement was needed. The social dislocations caused by the “Industrial Revolution” were increasingly the targets of state law. Direct federal regulation of peacetime commerce did not occur until near the end of the 19th century with the Interstate Commerce Act, directed at the railroads, and the Sherman Antitrust Act, directed at John D. Rockefeller’s Standard Oil Trust and similar “malefactors of wealth.” The new entrepreneurial class that opposed state interference in their economic activities was frustrated by the variability of protections offered by the state constitutions and, if they were interstate companies, by the inconvenience and potential contradictions of state-by-state litigation to protect their interests.

There was the germ of another constitutional approach during this time, in the form of Corfield v. Coryell, a case in 1823 from the federal circuit court. Supreme Court Justice Bushrod Washington (George Washington’s nephew), as circuit judge, declared that the Privileges and Immunities Clause of Article IV, Section 2, protected a citizen of one state travelling to another state against discriminatory legislation by the latter, at least as to the exercise of certain fundamental rights. The “P & I Clause” had its antecedent in the Articles of Confederation. Washington wrote, “We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign.” Washington’s opinion reflected the “higher law” reasoning, based on theories of natural law, natural rights, and broad principles of freedom reflected in the social contract, to which the courts of that time had frequent recourse to limit the actions of state governments.

The drawback of Corfield was that Washington correctly held that the P & I Clause only applied to state laws that targeted out-of-state visitors. It was an anti-discrimination protection, not a guarantee of basic rights to anyone. Since state laws typically restricted in-state businesses as well as interstate enterprises, Corfield was of limited use initially.

Further change came through the adoption of the Fourteenth Amendment in 1868. That amendment contains protections against laws by state and local governments that infringe the privileges or immunities of citizens, that deprive persons of life, liberty or property without due process of law or that deny a person the equal protection of the law. The first Supreme Court decision to address the application of the Fourteenth Amendment to safeguard property and economic liberty against state regulation came in the Slaughterhouse Cases in 1873. An association of butchers in New Orleans challenged a state-created slaughterhouse monopoly. The Court rejected their claims and held that the privileges and immunities clause only protected rights of national citizenship, that is, rights that arise directly from a citizen’s connection to the federal government, such as the right of access to federal instrumentalities, and certain rights protected in the Constitution itself, such as the right of assembly and petition. As to due process, that clause only protected rights of fair trial. The equal protection clause only protected Blacks against racially discriminatory state laws.

The dissent in the Slaughterhouse Cases envisioned much greater protections. Using remarks made during the congressional debates on the amendment, Justice Stephen Field claimed that the privileges and immunities protected were those listed in the Bill of Rights, as well as those that would be within Justice Washington’s expansive description in Corfield. This would include the right to pursue any lawful trade or profession without the restriction posed by a state-licensed monopoly. Justice Joseph Bradley proposed an alternate theory, that the Louisiana law’s substance was an unconstitutional deprivation of property and liberty without due process.

The Slaughterhouse justices generally agreed that the Fourteenth Amendment applied some or all of the Bill of Rights to the states. Moreover, the dissenters argued that broad conceptions of privileges and immunities, and of property and liberty also restricted the states. Both approaches subsequently were used by the Supreme Court to overturn state laws. While Justice Field’s broad reading of privileges and immunities did not catch on, Justice Bradley’s views became the majority’s in Allgeyer v. Louisiana in 1897 and Lochner v. New York in 1905. There, the Court overturned economic regulations as a violation of the “liberty of contract” protected under the Due Process Clause. This doctrine of “substantive due process” is no longer used to invalidate federal laws (under the Fifth Amendment’s Due Process Clause) or state laws (under the Fourteenth Amendment’s) that regulate economic liberty, but has been used to strike down laws that violate various ill-defined aspects of the “right of privacy,” including long-standing laws that defined traditional marriage, prohibited certain forms of sexual conduct, and restricted access to contraception and abortion.

In addition to such “unenumerated” rights, the Supreme Court gradually applied the specific guarantees of the Bill of Rights to the states. Scholars debate about which case first “incorporated” specific provisions of the Bill of Rights into the Due Process Clause of the Fourteenth Amendment. At the turn of the 20th Century, the Supreme Court began to acknowledge that some rights protected by that clause were similar to those in the Bill of Rights. In any event, beginning in the 1930s, the Court over the next three decades clearly moved to incorporate, first, the Free Speech and Free Press Clauses and, second, various criminal procedure protections.

Three factions developed among the Supreme Court justices. One group, led by Justice Benjamin Cardozo, argued that only certain “preferred freedoms” within the Bill of Rights are incorporated into the Due Process Clause. Under this process of “selective incorporation,” only those freedoms that are “implicit in the concept of ordered liberty” would be applied against the states in the same manner that they applied to the federal government. Writing in Palko v. Connecticut in 1938, Cardozo defined these as the “fundamental principles of liberty and justice which lie at the base of all our civil and political institutions,” a vague and flexible formulation reminiscent of that by Bushrod Washington in Corfield a century earlier.

Justice Felix Frankfurter leaned towards Cardozo’s approach, but argued that the federal government and the states had different roles in our federal system. Particularly in the traditional state law domain of criminal law and procedure, the interests of the states must be balanced against the right at issue. As a result, the scope of the Bill of Rights protections when incorporated against the states should be similar to, but not necessarily identical with, those protections when they directly limit the federal government.

Justice Hugo Black urged “wholesale incorporation” of all of the first eight amendments of the Constitution. Black relied on his reading of the congressional debates over the Fourteenth Amendment, and on what he saw as the main purpose of that Amendment. The Court rejected Black’s approach as unsupported by the historical record. However, even though Black lost that battle, he effectively won the war. On recognition of the increased mobility and homogenization of our population across the country, the Court has come to incorporate almost all provisions of the first eight amendments. Only the Third, Seventh, and small parts of the Fifth and Eighth Amendments so far have avoided the process of the nationalizing of rights through their incorporation into the Due Process Clause of the Fourteenth Amendment.

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

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Guest Essayist: Gary Porter

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How the Bill of Rights Was Aimed at the Federal Government Because States Had Their Own Bills of Rights

James Madison was suspicious of a Declaration of Rights at the national level. In a letter to his friend Thomas Jefferson, then serving as Minister to France, Madison confessed that his “own opinion has always been in favor of a bill of rights; provided it be so framed as not to imply powers not meant to be included in the enumeration.”[1] He was particularly concerned “that a positive declaration of some of the most essential rights could not be obtained in the requisite latitude. I am sure that the rights of conscience in particular, if submitted to public definition would be narrowed much more than they are likely ever to be by an assumed power.”[2] But Madison had seen, first-hand, the obstinacy of the states under the Articles of Confederation towards the rights of their citizens.  In his “Vices of the Political System of the United States,” Madison decried the “Injustice of the laws of States.” While the “multiplicity” and “mutability” of state laws showed a “want of wisdom,” their “injustice” was “still more alarming: more alarming not merely because it is a greater evil in itself, but because it brings more into question the fundamental principle of republican Government, that the majority who rule in such Governments, are the safest Guardians both of public Good and of private rights.”[3]

Madison told Jefferson that in their home state he had “seen the bill of rights violated in every instance where it [was] opposed to a popular current.” His precious “rights of conscience” were particularly vulnerable.  Madison was livid over the jailing of Baptist preachers in the neighboring Culpeper County, calling it “that diabolical Hell conceived principle of persecution” in a letter to his College of New Jersey classmate William Bradford.

In 1776, Madison had the opportunity to strike a blow for liberty of conscience by successfully arguing, as Virginia’s Declaration of Rights was being drafted, that the principle of “toleration” towards other Christian denominations, even if it was fullest toleration, was simply not enough.  Citizens would not enjoy complete liberty of conscience until “all men are equally entitled to the free exercise of religion.”

It comes as no surprise then to see Madison try once again to protect liberty of conscience in 1789 when drafting his proposed amendments to the new Constitution. One proposed article read: “No State shall violate the equal rights of conscience, or the freedom of the press, or the trial by jury in criminal cases.”  In the ensuing floor debate it was argued that this amendment was improper; the Constitution gave the federal government no authority to alter the state constitutions, and such an amendment would certainly amount to such an alteration, at least in the state constitutions where a right of conscience was not already secured.  Madison, however, viewed this as the most important amendment in the whole list, his reason being, “If there were any reason to restrain the Government of the United States from infringing upon these essential rights, it was equally necessary that they should be secured against State Governments.” Madison was eventually outvoted and the “infringement” on the states was “left on the cutting room floor.”

The Constitution already contained some specific words concerning state powers; Article 1 Section 10 enumerated several tightly targeted prohibitions, and the 10th Amendment made clear that any power not specifically granted to Congress was reserved to the states and/or the people.

Congressmen in the summer of 1789 were well aware that the constitution of nearly every state predated the new U.S. Constitution and that they had been working well.  Almost all of them contained either Declarations of Rights or specific protections in the body of the constitution; some of these protections were more elaborate even than those which ended up in the U.S. Bill of Rights.[4]

That’s the way things would stand for the next 136 years; but I’m getting ahead of myself.

In the early 1830s, the city of Baltimore, Maryland, began a public works project that required the modification of several streams that emptied into Baltimore Harbor. Construction resulted in large amounts of sediment entering the streams, which flowed into the harbor near a wharf owned and operated by one John Barron.  The sediment eventually reached the point where it became nearly impossible for ships to approach Mr. Barron’s wharf and his business dropped precipitously. Barron sued the City of Baltimore for his financial loss, arguing that the city’s action “took” his property without the due process promised him by the Fifth Amendment. He was awarded $4,500 in damages by the trial court, but a state appellate court reversed the decision.  Barron appealed to the Supreme Court, which ruled[5] that the Fifth Amendment’s guarantee of just compensation when private property is taken for public use is a restriction on the federal government alone. The opinion in Barron v. Baltimore by Chief Justice John Marshall held that the Constitution’s first ten amendments[6]contain no expression indicating an intention to apply them to the State governments.”

This made perfect sense.  The first five words of what became known as the Bill of Rights: “Congress shall make no law…” make clear the target of the amendments – Congress (and by implication, the rest of the federal government), not the states.

On February 26, 1866, in debate over what became the 14th Amendment, the amendment’s principal author, Rep. John Bingham, was asked whether he intended the amendment to apply, as some perceived, “only to the eleven states lately in rebellion.”  Bingham replied: “It is to apply to other States also that have in their constitutions and laws to-day provisions in direct violation of every principle of our Constitution.”[7]

The following day, Rep. Bingham rose to elaborate upon the preceding day’s debate.

“Excuse me. Mr. Speaker, we have had some most extraordinary arguments against the adoption of the proposed amendment…

“Mr. Speaker, I speak in behalf of this amendment in no party spirit, in no spirit of resentment toward any State or the people of any State, in no spirit of innovation, but for the sake of a violated Constitution and a wronged and wounded country whose heart is now smitten with a strange, great sorrow. I urge the amendment for the enforcement of these essential provisions of your Constitution, divine in their justice, sublime in their humanity, which declare that all men are equal in the rights of life and liberty before the majesty of American law.

“Representatives, to you I appeal, that hereafter, by your act and the approval of the loyal people of this country, every man in every State of the Union, in accordance with the written words of your Constitution, may, by the national law, be secured in the equal protection of his personal rights. Your Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law—law in its highest sense, that law which is the perfection of human reason, and which is impartial, equal, exact justice; that justice which requires that every man shall have his right: that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations.”

Representative Robert Hale of New York rose to ask whether he might be allowed “to ask a single question pertinent to this subject?” Bingham accepted.

(Hale) “I desire … to ask [Mr. Bingham], as an able constitutional lawyer, which he has proved himself to be, whether in his opinion this proposed amendment to the Constitution does not confer upon Congress a general power of legislation for the purpose of securing to all persons in the several States protection of life, liberty, and property, subject only to the qualification that that protection shall be equal…”

(Bingham) “It certainly does this: it confers upon Congress power to see to it that the protection given by the laws of the United States shall be equal in respect to life and liberty and property to all persons.”

(Hale) “Then will the gentleman point me to that clause or part of this resolution which contains the doctrine he here announces?”

(Bingham) “The words ‘equal protection’ contain it, and nothing else.”

It would take the Supreme Court 39 years to come around to Bingham’s thinking on the 14th Amendment.

Eight years after the 14th Amendment was ratified, in fact, in United States v. Cruikshank, the Court affirmed, once again, that the Bill of Rights did not apply to the states.  In Cruikshank, it meant that the First Amendment’s right to assembly “was not intended to limit the powers of the State governments in respect to their own citizens, but to operate upon the National Government alone.”[8]

We skip forward to July 1919. Benjamin Gitlow, a member of the Socialist Party of America, who had served in the New York State Assembly, published a document called “Left Wing Manifesto” in The Revolutionary Age, a newspaper for which he also served as business manager.  The State of New York charged Gitlow with criminal anarchy under New York’s Criminal Anarchy Law of 1902.

At trial, Gitlow insisted that his “Manifesto” consisted of historical analysis and did not advocate anarchy. Nevertheless, he was convicted and sentenced to five to ten years in prison.  He appealed, and the case eventually reached the Supreme Court.

The question presented to the court was: “Does the First Amendment prevent a state from punishing political speech that directly advocates the government’s violent overthrow?” The Supreme Court said “No,” finding that “Freedom of speech and of the press, as secured by the Constitution, is not an absolute right to speak or publish without responsibility whatever one may choose or an immunity for every possible use of language.”  They upheld Gitlow’s conviction with the explanation that the government may suppress or punish speech that directly advocates the unlawful overthrow of the government, but the Court took the unprecedented step in announcing that, for the purposes of the case, that freedom of speech and of the press are among the personal rights and liberties protected by the due process clause of the Fourteenth Amendment from impairment by the States.[9] (Emphasis added) This became what is now called the “Incorporation Doctrine.”

After Gitlow, the Court began the tedious process of clause by clause incorporation as specific cases allowed. Not every clause of the Bill of Rights was deemed worthy of incorporation; in Palko v. Connecticut, the Court ruled that only those rights that were “of the very essence of a scheme of ordered liberty” should be incorporated.[10]  We should note that the phrase “scheme of ordered liberty” appears nowhere in the Constitution. To mold a court-invented doctrine so that it aligns with a syrupy but entirely unconstitutional phrase would seem the height of judicial hubris.

Some notable exceptions to incorporation thus far include the entire Third Amendment (outside the jurisdiction of the Second Circuit Court of Appeals), indictment of a Grand Jury (Fifth Amendment) and the right to a jury selected from residents of the state and district where the crime occurred (Sixth Amendment).

A list of those clauses incorporated can be found on Wikipedia.[11] The most recent addition to the list is the “Excessive fines” clause of the Eighth Amendment in February 2019 (in Timbs v. Indiana)

The incorporation Doctrine is not without its critics,[12] this writer being one of them.  While it may be appropriate for the states to be held responsible for protecting the rights specified in the Bill of Rights, having the Supreme Court invent the doctrine of incorporation without input from We the People is blatantly unconstitutional.  The American people should have been allowed to conduct a national conversation over the idea, an appropriate Constitutional amendment should have been proposed and, if ratified, the feat would have been accomplished, constitutionally.  Instead, the court, never intended by the Framers to be representative of the people, took it upon itself to act.  This is certainly in line with the view of Chief Justice Charles Evan Hughes that “[w]e are under a Constitution, but the Constitution is what the judges say it is….”[13] The acquiescence of the American people since 1925 has been perceived as their acceptance.

Bryan Keith Morris, in The Incorporation Doctrine: A Legal and Historical Fallacy, takes a textualist instead of original intent position (as taken by the Court) in arguing that the Incorporation Doctrine should be discarded.  John P. Frank obliterates the originalist position in “The Original Understanding of “Equal Protection of the Laws.[14]  Both essays should be read before someone comes to a conclusion on the matter.

Today, Associate Justice Clarence Thomas and others maintain that the privileges and immunities clause of the Fourteenth Amendment and not the due process clause should provide the anchor for the Incorporation Doctrine. Thomas recently reiterated this view in his concurring opinion in Timbs v. Indiana.

No matter what your position of the rectitude of the Incorporation Doctrine today, it is indisputable that those who approved and ratified the Bill of Rights had no intention of infringing on the powers of the several states.

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 a weekly essay: Constitutional Corner which is published on multiple websites. Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] James Madison to Thomas Jefferson, 17 Oct. 1788.

[2] Ibid.

[3] https://founders.archives.gov/documents/Madison/01-09-02-0187.

[4] See https://www.americanthinker.com/articles/2018/12/state_bills_of_rights_have_the_real_protections.html

[5] Barron v. Baltimore, 32 U.S. (7 Pet.) 243 (1833).

[6] The Constitution had 12 amendments by then.

[7] https://www.encyclopedia.com/history/dictionaries-thesauruses-pictures-and-press-releases/congress-debates-fourteenth-amendment-1866.

[8] https://caselaw.findlaw.com/us-supreme-court/92/542.html.

[9] https://supreme.justia.com/cases/federal/us/268/652/.

[10] https://en.wikipedia.org/wiki/Palko_v._Connecticut.

[11] https://en.wikipedia.org/wiki/Incorporation_of_the_Bill_of_Rights.

[12] https://lonang.com/wp-content/download/TheIncorporationDoctrine.pdf.

[13] Speech before the Chamber of Commerce, Elmira, New York (3 May 1907); published in Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908 (1908), p. 139.

[14] https://openscholarship.wustl.edu/cgi/viewcontent.cgi?article=2738&context=law_lawreview.

Guest Essayist: Andrew Langer

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The thirty-sixth state admitted to the Union was Nevada, having ratified the U.S. Constitution October 31, 1864, and currently uses the Nevada State Constitution adopted in 1864.

The relationship between Nevada and the federal government is as much a matter of the history of how Nevada became a state as it is the conditions under which it was granted statehood.  Like many western states, states whose territories were carved out of the lands gained by the United States as a result of the Treaty of Guadalupe Hidalgo of 1848.

Until that point, states entering the union retained title to “unappropriated public lands” within their boundaries.  But states entering the Union after 1848, by and large, ceded all title to these unappropriated public lands—i.e., lands that were neither privately owned, nor were they dedicated to some official public purpose—to the federal government as an incident of their becoming a state.  As a result, these states, which were also much, much larger than their eastern counterparts, came into the Union with massive amounts of federal land within their midst.

There were a number of reasons for this.  Keeping in mind that Nevada was admitted to the Union during the height of the civil war—the state was also rushed to admission because Republicans wanted to ensure President Abraham Lincoln’s re-election in 1864 (it turned out that Lincoln won handily, but the party politicians at the time wanted to make certain of it).

But the transfer of title of unappropriated public lands from the territories to the federal government upon statehood had a lesser-known (and from an academic perspective, really not understood at the time) benefit.

In his book, The Mystery of Capital, the Peruvian economist and political scientist Hernando DeSoto talks about the importance of “clearing title” to real property (i.e., land) in order to facilitate its purchase and development.  The concept is simple and straightforward:  people will invest in real property only when they have certainty that they have clear legal title to that land, and that this title will be protected under the rule of law.

In order to make certain that these newly-born states would be settled, it was essential that prospective residents be assured that the land they were settling would actually be theirs-that nobody else would lay claim to them down the road.

But part and parcel of this conversion of state territorial lands to federal ownership was a secondary agreement—that the federal government would “dispose” of these lands (with the exception of lands that would be used for governmental or educational purposes).  In Section 10 of the Enabling Act for Nevada, passed by Congress in 1864, Congress agreed that the state would be paid a percentage of the sale of all public lands, “which shall be sold.”  It was an agreement which essentially admits that Congress didn’t envision, at the time, that the federal government wouldn’t retain these lands in perpetuity.

It’s the same agreement, incidentally, that the Federal Government agreed to in essentially every enabling act after the Treaty of Guadalupe Hidalgo was ratified… and yet these states still contain tremendous federal land ownership.

The reason for this is straightforward.  For many years, these lands were remote, inaccessible, and in many cases inhospitable.  While much of it is used for ranching and timber production, it was many years before some of the more desolate public lands were seen as possibilities for mineral, petrochemical or recreational usage.  So there was no demand for many of these lands.

But as that demand began to grow, push-back against this longstanding contractual agreement to dispose of these lands began as well—especially from recreation enthusiasts, who saw no distinction between National Park lands (clearly managed for recreational use) and lands managed by the U.S. Forest Service (which, as an agency under the U.S. Department of Agriculture are managed for timber production), the Bureau of Land Management (which manages lands used by ranchers) and a host of other agencies which lease lands out for private use.

It was out of this attitude that the Federal Land Policy and Management Act of 1976 was created.  FLPMA, as it is better known, “flips” the duty to dispose on its head—and for nearly the last half-century there is instead a “duty to retain” these public lands, but the onus on localities, states, or private parties to make a heavy case for why a parcel of property ought to be disposed.

As a result, states like Nevada have huge parcels of federal land in their midst—more than 4/5 of Nevada is federally-owned.  This has huge impacts on the ability of the state government and local governments to effectively exercise their authorities.

Take Nye County, NV—Nye is the third-largest county in the United States, the size of Vermont and New Hampshire combined.  It is more than 90% federally-owned.  When the county makes land-use decisions, in many case, these decisions have to be reviewed by a host of federal agencies, by personnel thousands of miles away working within enormous bureaucracies.  At many points, there has been conflict—for instance, in the mid-1990s, a road was washed out connecting two Nye towns.  Because the road crossed US Forest Service lands, the county had to work with the USFS to try and get the road reopened since, absent the road, Nye residents would have to go, literally, hundreds of miles out of the way to get from City A to City B.

The County Commissioners felt that the USFS was dragging its feet and, in fact, the forest service was reluctant to reopen the road.  It came to a head when a frustrated county commissioner got on a county-owned bulldozer and opened up the closed road himself.

The federal government sued Nye County, and despite state law saying that the counties had some powers with regards to utilization of these lands, when the Nevada Attorney General refused to defend that law, the federal government won that lawsuit—leaving counties like Nye powerless in the face of massive government retention of public lands.

We continue to see flare-ups in the tension between local landowners and federal land management authorities.  Despite the fact that obligations exist since states like Nevada became members of the Union, existing federal law will make it hard for land management and ownership to devolve to the states.  Which means that state and local governments will still have to contend with the federal government as a massive partner in non-federal decision-making.

Andrew Langer is President of the Institute for Liberty and host of the Andrew Langer Show on WBAL NewsRadio 1090 in Baltimore.

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Guest Essayist: Anthony Sanders

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Minnesota has a proud constitutional tradition of protecting individual liberties. This short essay provides an overview of its constitutional history, and a few examples of the rights that the state constitution protects.

Northwest Ordinance

Minnesota’s constitutional roots go all the way back to before the adoption of the U.S. Constitution.

As Minnesotans will tell you, the state is the source of the Mississippi river. The land east of the river was recognized as part of the United States in 1783, after the United States won the Revolutionary War. A few years later in 1787, Congress, acting under the Articles of Confederation, drafted the Northwest Ordinance. The Ordinance included a set of requirements for new states to be formed out of the Northwest Territory, the area which today includes Minnesota east of the Mississippi, as well as Ohio, Indiana, Illinois, Michigan, and Wisconsin. It required new states to guarantee many individual liberties, including freedom of religion, freedom of navigation on public waterways, and the prohibition of slavery.

The land west of the Mississippi was not claimed by the United States until 1803 as part of the Louisiana Purchase.

Constitutional Convention

After the rest of the old Northwest Territory and some of the Louisiana Purchase had become states, it was Minnesota’s turn. The Minnesota Territory was formed by Congress in 1849. Further legislation in 1857 allowed for the formation of a state, while narrowing the territory’s size in the process (shaving off the westernmost areas, which eventually became part of both North and South Dakota).

The residents of the territory then came together to form a constitution, and planned a convention for the summer of 1857. Tensions between Democrats and members of the new Republican Party were high. It did not help that this was the year of the infamous slavery case Dred Scott v. Samford and the Supreme Court’s ruling that blacks are not citizens, and only four years before the eventual outbreak of the Civil War. Scott himself had actually resided in Minnesota while his owner was stationed at Fort Snelling, an Army outpost at the confluence of the Minnesota and Mississippi rivers.

On the first day of the constitutional convention, July 13, 1857, all elected delegates sat together to open the proceedings. And that was the only time they did so. The bad blood between the parties boiled over and the rest of the convention was really two “conventions” where Democratic and Republican delegates held parallel sessions. In these they each drafted and debated a constitution for the state, denigrating the members in the other group in the process.

Newspapers continually published drafts of a constitution that each party created as they moved along. This created a dynamic where for several weeks each “convention” could follow and copy the other. Thus, despite their differences, when the parties published their separate final drafts, it turned out that the versions were very similar. Finally, each side appointed a five-member delegation to hammer out a final copy.

The resulting constitution contained many provisions drawn from the Northwest Ordinance, including strong protections for individual liberties. As with most other state constitutions, its bill of rights protected freedom of worship, freedom of the press, property rights, and due process. It also prohibited unreasonable searches and seizures. The constitution created a House and Senate, known as a bicameral legislative system, a governor and other elected officials (including a secretary of state and auditor), an elected judiciary, a quasi-independent state university (the University of Minnesota, later sometimes called a “constitutional agency”), and a guaranteed system of public schools.

Amendments Since 1857

Unlike many other states, Minnesota has had only the one constitution in its history, although it has been amended over one hundred times, and substantially reorganized once. The numerous amendments—which are written by the legislature but have to be voted on by the citizens—are too many to list here, but the author will note a couple.

In 1881, the state adopted a ban on “special legislation,” which is legislation that concerns a particular person or class of people. The ban’s language was then amended several times over the ensuing decades. Advocates rightfully noted that the legislature was corruptly being used to grant special favors to individuals and specific corporations.

Another amendment, unique to Minnesota, was a protection on the right to farm and peddle. Adopted in 1906, it reads “[a]ny person may sell or peddle the products of the farm or garden occupied and cultivated by him without obtaining a license therefor.” The clause has been interpreted narrowly by the state courts, but its text promises a great deal of protection to family farmers and others, such as home bakers.

Redraft in 1974

In 1974, after years of study, the legislature proposed, and the voters adopted, a large reorganization of the state constitution. About a third of it was eliminated, largely where the text was redundant. However, unless stated otherwise, the changes were not meant to alter the meaning of the constitution. After the amendments many of the old provisions were found in new articles and clauses, and anyone studying caselaw or text from before 1974 must keep this in mind.

Jurisprudence

The interpretation of its constitution in Minnesota’s courts has varied over the years, as with any state. In its first few decades the state supreme court, for example, limited the power of cities by invalidating many protectionist local licenses. That approach, however, fell out of favor in the twentieth century.

Many provisions in the Minnesota Constitution mirror those in the U.S. Constitution. Minnesota has at times followed the jurisprudence of the U.S. Supreme Court on interpreting this parallel language, but in recent decades the state supreme court has been more willing to distinguish itself in protecting certain individual liberties. One prominent example has been in search and seizure cases, where the court at times has rejected allowing the police to conduct searches that the U.S. Supreme Court would have upheld.

Anthony Sanders is a Senior Attorney at the Institute for Justice. He is the author of several articles on constitutional law and jurisprudence, including pieces appearing in the Iowa Law Review and American University Law Review.

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Guest Essayist: Scot Faulkner

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Admitted June 20, 1863 by ratifying the U.S. Constitution, West Virginia became the thirty-fifth state. The West Virginia State Constitution in current use was adopted in 1872.

The origins of West Virginia, its current challenges, and its political dynamics are all embodied in a unique case decided by the U.S. Supreme Court in 1870.

In Virginia v. West Virginia, 78 U.S. 11 Wall. 39 39 (1870) 78 U.S. (11 Wall.) 39 two counties demanded to be reinstated into Virginia.  The Court ultimately prevented Berkeley and Jefferson Counties from returning to Virginia.  In the process, the Civil War and the battlefield origins of West Virginia were reviewed in detail.  Three Justices dissented, asserting that the birth of West Virginia was chaotic and violated the rights of local citizens in the Eastern Panhandle.

The three judge dissent reveals origins of the state’s current political tensions.  Citizens in the Eastern Panhandle continue to agitate against the highly centralized state government.

Virginian political leaders initiated a process to secede from the Union in January 1861.  As a Commonwealth, Virginia gave deference to county representation.  Initially, the 152 delegates were solidly pro-Union.  However, old regional rivalries surfaced.

Delegates from the western counties of Virginia raised the issue of unequal political power with the eastern sections of the state.  This east-west divide had been simmering since the Virginia Constitutional Convention of 1829.  That State Constitution required a property qualification for voting. This disenfranchised many yeoman farmers in the more mountainous western counties. It also embraced counting slaves on a three-fifths basis for apportioning representation. Every county beyond the Alleghenies, except one, rejected the 1829 constitution, which still passed with overwhelming eastern support. The issue of regional inequality erupted again during the Virginia Constitutional Convention of 1850-1851.

On the morning of April 12, 1861, Confederate cannons opened fire on Fort Sumter in Charleston, South Carolina. After the Fort’s surrender on April 13, President Abraham Lincoln issued a call for 75,000 volunteers to forcibly return the rebellious states to the Union.  This was enough for the secession proponents in the Virginia Convention to prevail on April 17, 1861.

A formal vote, by county, was scheduled for May 23, 1861. Secessionists took matters into their own hands and attacked the Federal Arsenal in Harpers Ferry on the evening of April 18.

The Eastern Panhandle became the site for over 60 Civil War Battles.  Local communities descended into chaos as Union and Confederate armies competed for control of this critical north-south gateway.  Some towns changed hands dozens of times.

Pro-Union forces in western Virginia formed a separate state in June 1861.  Former Virginia Governor, and Confederate General, Henry Wise reported that, “The Kanawha Valley is wholly traitorous…You cannot persuade these people that Virginia can or ever will reconquer the northwest.”

Early in the Civil War, Union forces solidified control of northern Virginia (Arlington, Alexandria, and Fairfax). President Lincoln and the U.S. Congress merged this Unionist beachhead with the western counties as the “free” state of Virginia.

On August 20, 1861, President Lincoln empowered this military-backed civilian entity to establishment the separate state of West Virginia from the pro-Union western counties that opted-out of the Secession Convention.

A “free” state convention met in Wheeling, November 26, 1861, and drafted the “Constitution of West Virginia.”  It designated forty-four counties, “formerly part of the State of Virginia,” to be “included in and form part of the State of West Virginia.” The Counties of Pendleton, Hardy, Hampshire, Morgan, Frederick, Berkeley, or Jefferson were not named as part of the state.

The new West Virginia constitution left open the possibility of adding additional counties:

“if a majority of the votes cast at the election or elections held as provided in the schedule hereof, in the district composed of the Counties of Pendleton, Hardy, Hampshire, and Morgan, shall be in favor of the adoption of this constitution, the said four counties shall be included in and form part of the State of West Virginia, and if the same shall be so included, and a majority of the votes cast at the said election or elections, in the district composed of Berkeley, Jefferson, and Frederick, shall be in favor of the adoption of this constitution, then the three last-named counties shall also be included in and form part of the State of West Virginia.”

Under the terms of this Constitution, an inclusion vote was held on the first Thursday in April 1862 for citizens in the original forty-four counties, and those living in Pendleton, Hardy, Hampshire, and Morgan.

Significantly, no one in the counties of Berkeley, Jefferson, or Frederick voted on the matter, because:

“from the 1st of June, 1861, to the 1st of March, 1862, during which time these proceedings for the formation of a new state were held, those counties were in the possession and under the absolute control of the forces of the Confederate States, and that an attempt to hold meetings in them to promote the formation of the new state would have been followed by immediate arrest and imprisonment.”

A series of laws were passed within the “free” state of Virginia authorizing the military-backed State Legislature to certify popular support for counties being added to the new state of “West Virginia.” On January 31, 1863, the “free” state of Virginia gave consent for the counties of Berkeley and Jefferson to be transferred to the State of West Virginia.  Frederick County, still under Confederate control, remained in the old Virginia.

At the national level, an enabling act was approved by President Lincoln on December 31, 1862 for admitting West Virginia, on the condition that a provision for the gradual abolition of slavery be inserted in the state constitution.

The West Virginia state convention reconvened on February 12, 1863, and passed a new constitution including the abolition provision. The revised constitution was adopted on March 26, 1863.  On April 20, 1863, President Lincoln issued a proclamation admitting West Virginia as the 35th state effective on June 20, 1863.

West Virginians in the eastern panhandle bridled under being forcibly included in a Union state.  Rumors were rampant that the owners of the B&O Railroad engineered their inclusion because they did not want their rail line going through a southern state.  This led to the 1870 Supreme Court decision. As recently as the 1990s, the Mayor of Charles Town, the county seat of Jefferson County, explored reopening the case.

Unlike its origins, West Virginia chose not to be a Commonwealth.  It remains one of the most centralized state governments in America, possibly for maintaining unity among entrenched regional interests.  Only recently did the West Virginia legislature authorize limited home rule for certain municipalities.  The power of counties to control growth and levy impact fees is less than 20 years old.

West Virginia’s turbulent genesis, and its Charleston-centric political power, has led to the state earning a reputation for corruption and incompetence.  “Democrats are controlled by the coal mining unions; Republicans are controlled by the coal mining executives” observed a Republican legislator.

The state is challenged in finding its economic bearings as coal use declines.  It lacks internet access (West Virginia has the worst connectivity of the fifty states, while neighboring Virginia has the best).  Teacher unions and a bloated state bureaucracy make West Virginia one of the most expensive per-student school systems in the country, while consistently placing 49 or 50 in academic achievement.  The state steadily loses population, except for the eastern panhandle and the state Capitol of Charleston.

Except for recent Presidential elections, Democrats dominate the state.  In 2016, Republicans won control of both the House of Delegates and the State Senate for the first time in 82 years.  In Jefferson County, formed in 1803, it took until 2004 for the first Republican Clerk to be elected. The first Republican Jefferson County Prosecuting Attorney was elected in 2018.

Scot Faulkner advises corporations and governments on how to save billions of dollars by achieving dramatic and sustainable cost reductions while improving operational and service excellence. He was the Chief Administrative Officer of the U.S. House of Representatives. He started his Congressional career as an intern for Rep. Don Young (R-AK), then served on the legislative staffs of Rep. Arlan Stangeland (R-MN) and Rep. John Ashbrook (R-OH). Faulkner later served on the White House Staff and as an Executive Branch Appointee.

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Guest Essayist: Gary Porter

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Admitted in June 20, 1863 by ratifying the U.S. Constitution, West Virginia became the thirty-fifth state. It is known as “The Mountain State” with the West Virginia State Constitution in current use adopted in 1872

The story of how West Virginia became a state is an amazing story; full of constitutional intrigue and slight-of-hand worthy of Houdini himself.

Our story begins, where else, in 1776 Virginia.  Virginia’s Constitution of 1776 was a rush-job.  War with Britain was eminent and Virginia would need a new government to see it through this war; time was fleeting. Anticipating that the Continental Congress then meeting in Philadelphia would consider and likely approve a call for independence,[1] forty-five delegates assembled at Williamsburg, Virginia on May 6th. Seven weeks later, on June 29, Virginia had a new Constitution.

Virginia’s Declaration of Rights, which preceded the Constitution itself, is one of the finest written during the founding period.  Largely the work of George Mason of Fairfax, VA (with some important input from a 25-year old James Madison) it elucidates several enduring principles of constitutional liberty absent even from the U.S. Constitution and its Bill of Rights.

The new Constitution was put into effect immediately upon its signing, without even so much as a nod to the people of the state.  When this “non-ratification” was challenged in 1793, the Virginia Supreme Court ruled that “This constitution is sanctioned by the consent and acquiescence of the people for seventeen years…” Case dismissed.

The new Constitution immediately attracted critics, among them Thomas Jefferson and James Madison.  Jefferson had wanted to remain in Williamsburg and work on the Virginia Constitution; instead he had been sent north to Philadelphia and on July 4th 1776, America benefited from the decision to send Jefferson north.   From Philadelphia, Jefferson had sent back to Williamsburg his ideas for the state constitution.  Unfortunately, they arrived too late for consideration.[2]

Among its many features, the 1776 Constitution limited the right to vote primarily to property owners and men of wealth. This coupled with malapportionment of voting districts, concentrated power in the hands of the landowners and aristocracy of Southeastern Virginia.  In the only book he ever wrote, “Notes on the State of Virginia” (1785), Jefferson listed several “capital defects” of the Virginia Constitution, including the unequal representation in the legislature.

Year after year, petitioners, largely from the western counties, called on the Virginia Assembly to initiate a constitutional convention to correct this and other deficiencies; to no avail. The House of Delegates twice passed a bill calling for a convention only to have it fail in the more conservative Senate. Western counties in the state continued to experience continued growth and increasing irritation at their lack of representation in the Assembly.

Finally, from October 5, 1829 to January 15, 1830, a convention met to “fix” the defects in the Constitution.  It has been termed the last “gathering of giants.”  Present were two former U.S. Presidents (James Madison and James Monroe) and the sitting Chief Justice of the Supreme Court, John Marshall (the Court’s case load was apparently not as pressing as it is today).  This august group of 96 men would eventually supply three presidents, seven U.S. Senators, fifteen U.S. Representatives and four governors.[3]

Despite the pleading of James Madison and others, the convention failed to fully rectify the Constitution’s malapportionment problem. They loosened the requirements for suffrage, but kept representation by county, which failed to solve the basic problem facing the western counties, and their residents would continue to feel under-represented and disenfranchised for the next 30 years.  The 1829 constitution was put to a popular vote and passed, even while many residents in the west voted against it.

Over the next 20 years the western half of Virginia experienced a flood of new settlers.  Attracted by cheap plentiful land, these hardy souls set up much smaller farms than those in the east — farms manageable without resorting to slave labor.  Calls for emancipation of the slaves and more equitable representation in Virginia’s government continued to be heard from the west.

Another constitutional convention in 1850-1851 eliminated the property requirement for voting, established popular election for the Governor and all Virginia judges, and created the office of Lieutenant Governor, also elected.  Delegates took note of the rising tension between the slave-owning east and the emancipation-interested western counties.[4]

Rising tensions in the United States between the manufacturing North and the agrarian South, exacerbated by the issues of slavery, tariffs, nullification and state’s rights reached a breaking point on December 20th, 1860 when South Carolina seceded from the Union.  In response, the Virginia General Assembly called for a convention, to meet in Richmond on February 13, 1861,[5] to consider whether Virginia should join South Carolina.  By the end of January, six additional southern states had seceded.

On April 12, Fort Sumter was attacked and taken over by the South.  Three days later President Lincoln issued a call for the states to provide 75,000 Union troops, including three regiments of 2,340 men from Virginia. Although a previous resolution to secede had been defeated in the convention, on April 17, 1861, Lincoln’s call for troops became too much: the convention approved an “Ordinance of Secession,” by an 88-85 vote.  All of the western and several of the northern counties objected to the Legislature’s decision to secede, but Virginia voters overall approved the ordinance by a wide margin and the convention formally ratified the Constitution of the Confederate States of America on June 19, 1861.

Virginia’s western counties conducted “anti-secession” conventions in Wheeling, Virginia on May 11, and June 11, 1861.  The Second Wheeling Convention declared the offices of all government officials in Richmond who had voted for secession to be vacant and promptly filled them with their own people. Viewed from another perspective, the Restored Government seceded from the state of Virginia.  The “Restored Government of Virginia,” with Francis H. Pierpont as their Governor, next appointed two Senators and two Representatives, who were immediately recognized by the U.S. Congress (Lincoln welcomed the votes).

Once that was complete, the “Restored Government of Virginia” moved itself to Alexandria, where it operated until 1865, while the “Secession Government of Virginia” continued to meet in Richmond.

At this point, there were two Virginia governments in existence, one meeting in Richmond and considering itself part of the Confederacy and one meeting in Alexandria considering itself part of the Union.  Each claimed the entirety of the land mass of Virginia as its own.  Was any of this legal?  The plot thickens.

The “Restored Government,” acting in accordance with Article IV, Section 3 of the U.S. Constitution, passed a resolution allowing the counties of northwest Virginia to split off and form their own state called West Virginia.  Before West Virginia is admitted to the Union as a distinct state (in 1863) there were actually three separate governments operating within the confines of the state of Virginia: one part of the confederacy, one part of the Union and one hopeful of becoming a separate state.  The “Restored Government” approved a new constitution in 1864.  Since this constitution was enacted under wartime conditions and the “Restored Government” stood on rather shaky ground to begin with, the 1864 constitution is not recognized as part of the constitutional history of Virginia.

The Virginia Declaration of Rights contains a statement that “all [political] power is … derived from, the people; that magistrates are their trustees and servants, and at all times amenable to them.”  When “the people” delegate their sovereign power to a government, is that a one-way trip, is the power forever surrendered?  No, no, a thousand times no!  Virginia’s Ratification Convention of the U.S. Constitution in 1788 made this crystal clear by writing: “WE the Delegates of the people of Virginia…, DO in the name and in behalf of the people of Virginia, declare and make known that the powers granted under the Constitution, being derived from the people of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression.”[6]

How much political power did the “Restored Government of Virginia” actually enjoy?  That’s certainly debatable; same for the government of West Virginia, and the Secession government for that matter.  Certainly possessed some legitimate political power resulting from the people each government represented.

But wait, there’s more!

There is also a provision in the Virginia Declaration of Rights of 1776 (Section 14) that reads: “…the people have a right to uniform government, … therefore, … no government separate from, or independent of the government of Virginia, ought to be erected or established within the limits thereof.” How was the “Restored Government” not in violation of the 1776 constitution?  The “Restored Government” saw no problem, they considered the secessionist government officials to have vacated their offices, which the “restorers” gladly “filled.” Problem solved.

On December 5, 1865, however, the Virginia Assembly in Richmond passed legislation repealing all the acts of the “Restored Government” regarding secession of the 39 counties and the admission of Berkeley and Jefferson counties to the state of West Virginia.

In response, on March 10, 1866, Congress passed a resolution acknowledging the transfer of Berkeley and Jefferson counties from Virginia to West Virginia.

The Virginia Assembly in Richmond sued.  With not a single Justice from any of the southern states on the bench, the odds were stacked against Virginia.  In Virginia v. West Virginia (1871), the Court avoided the question of whether West Virginia’s existence as a state was constitutional and instead focused on the specific counties referred to in the trial. They quickly dispensed with a challenge by West Virginia that they lacked jurisdiction to hear the case and then sided with the “Restored Government of Virginia” that what had occurred was all right and proper, that Congress had properly approved West Virginia’s proposed Constitution and that the polling of the citizens that had been conducted during this process was legitimate.[7]

After the war concluded in favor of the Union, the “Restored Government of Virginia” moved its operations to Richmond and operated under the Constitution of 1864 until Virginia was placed under the military rule of Lieutenant General John M. Schofield.  Schofield called for a new constitutional convention, which meet in Richmond in December 1867.  They enacted a constitution containing a provision that prevented Virginia from ever again leaving the Union.

On October 8, 1869, Virginia voted to ratify the Fourteenth and Fifteenth Amendments, and by doing so began the process of re-admittance to the Union, which concluded on January 26, 1870 when President Ulysses S. Grant signed an act culminating the process (But wait, wasn’t the restored “Virginia” back in the Union as of April 1861?).

The present West Virginia Constitution, enacted in 1872, begins: “Since through Divine Providence we enjoy the blessings of civil, political and religious liberty, we, the people of West Virginia, in and through the provisions of this Constitution, reaffirm our faith in and constant reliance upon God and seek diligently to promote, preserve and perpetuate good government in the State of West Virginia for the common welfare, freedom and security of ourselves and our posterity.”

The Bill of Rights, which comprises Article 3, not surprisingly borrows heavily from the Virginia Declaration of Rights. It is not without its unique elements, however.

Section 11 states: “Political tests, requiring persons, as a prerequisite to the enjoyment of their civil and political rights, to purge themselves by their own oaths, of past alleged offences, are repugnant to the principles of free government, and are cruel and oppressive.  No religious or political test oath shall be required as a prerequisite or qualification to vote, serve as a juror, sue, plead, appeal, or pursue any profession or employment.  Nor shall any person be deprived by law, of any right, or privilege, because of any act done prior to the passage of such law.”  The first clause is a reaction to the state government passing imposing loyalty oaths in the aftermath of the Civil War.  The repugnancy of such oaths, in fact, provided much of the impetus for the 1872 Constitution.

Section 15a is also unique.  It reads: “Public schools shall provide a designated brief time at the beginning of each school day for any student desiring to exercise their right to personal and private contemplation, meditation or prayer.  No student of a public school may be denied the right to personal and private contemplation, meditation or prayer nor shall any student be required or encouraged to engage in any given contemplation, meditation or prayer as a part of the school curriculum.”

Section 22 makes it clear that “A person has the right to keep and bear arms for the defense of self, family, home and state, and for lawful hunting and recreational use.” No confusing militia clause here.

Some other interesting provisions include a prohibition against duels, but only on the part of those who might later seek public office (Article 4 §10).

Since 1872, West Virginians have added more than fifty amendments to their Constitution and the rate of amendment gradually accelerated (there were only three amendments in the 19th century). There have been occasional calls for a new constitution. In 1964, the legislature passed a law that authorized the election of delegates to a constitutional convention. The movement then stalled after the state Supreme Court invalidated the law because it improperly apportioned delegate selection.

One is hard pressed to find any of the fifty United States with a more convoluted tale of statehood.  Welcome to “The Mountain State.”

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 a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] Delegate to the Continental Congress Richard Henry Lee had in fact been provided a resolution for independence to introduce in the Congress.  He did so on June 7, 1776.

[2] The Virginians did adopt much of the Declaration’s “grievances” section (from Jefferson’s initial draft) as the preamble to their new Constitution.

[3] https://en.wikipedia.org/wiki/Virginia_Constitutional_Convention_of_1829%E2%80%931830

[4] https://en.wikipedia.org/wiki/Virginia_Constitutional_Convention_of_1850

[5] https://www.encyclopediavirginia.org/Virginia_Constitutional_Convention_of_1861

[6] http://avalon.law.yale.edu/18th_century/ratva.asp

[7] Virginia v. West Virginia, 78 U.S. (11 Wall.) 39 (1871)

 

Guest Essayist: Tony Williams

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Louisiana, the eighteenth admitted to the United States, ratified the U.S. Constitution April 30, 1812 just before the start of the War of 1812. The current Louisiana State Constitution in use was adopted in 1975.

Louisiana was one of the flashpoints in the European struggle for empire in North America throughout the eighteenth century. It soon became one of the key points in the expansion of the United States both in terms of domestic sectional tensions and American foreign policy in the new nation.

The French owned the Louisiana Territory through the French and Indian War in the middle of the eighteenth century. The British made incursions into the Great Lakes area and erected a series of forts. The defeated French ceded the territory to the victorious British at the Treaty of Paris in 1763, and Spain gained possession of the territory around New Orleans. Carlos III wanted the territory as a base from which to safeguard treasure fleets coming from Mexican silver mines.

New Orleans was an area steeped in diversity and a rich exchange of different cultures that more or less mingled easily. The area from New Orleans to Baton Rouge grew quickly through end of the century, more than quadrupling from about 4,000 free persons and 5,000 enslaved persons to 19,000 free persons and 24,000 enslaved. Likewise, commerce expanded along the Mississippi.

Spain allowed the Americans to trade on the Mississippi during the Revolutionary War. However, after the war, Spanish officials feared that the new nation was expanding rapidly and moving westward to the Mississippi. Those fears were justified as American settlers flooded the frontier now that the old 1763 Proclamation Line that had banned their settlement beyond the Appalachian Mountains was negated by victory in the American Revolution. Kentucky became a state in 1792 followed by Tennessee four years later. Southern slaveowners brought their slaves to lands in what is now Alabama and Mississippi especially to grow cotton. As a result, Spain clamped down and restricted American trade on the Mississippi to the outrage of southern planters and statesmen.

Many of the founders such as George Washington and Thomas Jefferson envisioned a growing empire of liberty in the West. They made personal investments in western lands and schemes to build canals. One of their guiding principles was to link the original thirteen colonies to the Americans on the frontier. Washington and others were profoundly concerned that the settlers would lose their attachment to republican principles and to the United States. Instead, they would be drawn to the monarchical empires in the West and switch their allegiance.

Part of the reason for the land ordinances of the 1780s was to provide for the orderly settlement of western lands. In 1784, the Congress voted down a Jeffersonian provision for the exclusion of slavery in the entire West—a provision that would have fundamentally altered the character of settlement in Louisiana. But, there was an even larger concern that caused sectional friction in the new nation.

In 1784, the Spanish formally closed the Mississippi to American trade again (though despite the official restrictions, the Spanish still traded with American smugglers in New Orleans). Southerners were outraged, thought northerners were more concerned about fishing rights in Newfoundland. John Jay of New York began negotiating with Spanish minister Don Diego de Gardoqui for the free navigation of the Mississippi. In August 1786, Congress erupted in fierce debates over Jay’s negotiations when southerners discovered Jay was going to give up navigation rights for 25 years. Spain eventually made a few territorial concessions in modern-day Tennessee, Georgia, Mississippi, and Alabama because of the presence of American settlers but refused to budge on the question of the Mississippi.

The issue was finally settled in the fall of 1795 with Europe in flames due to the wars of the French Revolution. Thomas Pinckney of South Carolina negotiated Pinckney’s Treaty which won additional territory in Spanish Florida and more importantly secured the American right of free navigation of the Mississippi and New Orleans to trade.

When Spain ceded the Louisiana Territory to France in 1800, Americans were concerned about Napoleonic designs in North America. However, the continuing wars in Europe and the French failure to suppress a slave rebellion in Saint-Domingue (Haiti) led Napoleon to consider selling the territory to the United States. President Jefferson dispatched New Yorker Robert Livingston and Virginian James Monroe to negotiate the purchase of New Orleans as a critically-important port.

The shocked diplomats discovered that Napoleon was offering the entire Louisiana Territory to the United States at a paltry $15 million, or three cents an acre. While the purchase exceeded their instructions, they knew that it was an offer too good to be refused. Jefferson was torn because his scruples about a strict reading of the Constitution gave him pause, but he eventually decided that it was for the country and could be reasonably justified under the treaty-making power.

In 1804, the president sent the Corps of Discovery under Meriwether Lewis and William Clark to explore the lands of the purchase, map the area, record scientific observations, and establish friendly relations with the Native Americans. The purchase and exploration of the territory had hardly been completed when American settlers and their slaves moved into the area.

Louisiana quickly entered the Union as a slave state in 1812. The strategically-important port was the site of Andrew Jackson’s overwhelming victory over the British in 1815 during the War of 1812. By the time of the Civil War, Louisiana joined the Confederacy, and control of the Mississippi and New Orleans became a key theater of the war. Louisiana played a very important, if often underappreciated, role in the struggle for empire in North America and the history of the early republic.

Tony Williams is a Senior Fellow for the Bill of Rights Institute and a Fellow for Constituting America. He is the author of six books including Washington and Hamilton: The Alliance that Forged America.

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Guest Essayist: Gary Porter

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Known as “The Gem State,”  Idaho ratified the U.S. Constitution July 3, 1890 admitting the forty-third state to the Union. The Idaho State Constitution currently in use today was adopted on the same day as the state’s admission to the Union, July 3, 1890.

“We, the people of the State of Idaho, grateful to Almighty God for our freedom, to secure its blessings and promote our common welfare do establish this Constitution.” So begins the Idaho Constitution.

I’ve been to Idaho, many times. I’ve fished its waters, hiked its trails, hunted its elk (successfully), eaten its potatoes and golfed its links; it’s a beautiful state which also gave birth to a beautiful woman who would eventually become my wife. You should visit.

You may recall that, thanks to President Thomas Jefferson’s foresight and his Secretary of State, James Madison’s constitutional interpretation, the United States gained title to what was commonly called the Louisiana Territory from France in 1803, extending the United States of America all the way to the Pacific Ocean. Two years later, on their way to that ocean, Lewis and Clark entered present-day Idaho on August 12, 1805, at Lemhi Pass, bringing with them the first black man to also enter the land. In 1819, a treaty with Spain removed that country’s claim to the same land. One would think these two actions, with France and Spain, would settle the question of who owned the land that would one day become Idaho. One would be wrong; one more treaty would be required. In the 1820s, the British-owned Hudson’s Bay Company moved in and soon controlled the fur trade in the Snake River area. They encountered competition from French fur trading companies, and before too long, additional Americans. British claims to the land were settled in 1846 by the Oregon Treaty and the area became undisputed U.S. territory for the first time. Under U.S. jurisdiction over the next few years, the land mass of what would become Idaho was alternately made part of the Oregon Territory and Washington Territory.

Idaho’s gold rush began in 1860 when placer gold was discovered at Pierce, Idaho, and the industry continues to this day, 3 million troy ounces (more than 90 tons) later. Three years after the gold rush began, a silver rush followed that has produced 1 million troy ounces to date.[i]

Captivated by the thought of siphoning off some of the newfound wealth, Congress began encouraging the land be recognized as a distinct territory.

On December 15th, 1862, in the midst of the Civil War, Congressman William Kellogg of Illinois, introduced the following resolution in the House of Representatives: “Resolved, That the Committee on Territories be instructed to inquire into the propriety of establishing a Territorial government for that region of country in which are situated the Salmon river gold mines; and that they report by bill or otherwise.” Two months later, the “Organic Act of the Territory of Idaho,” passed by both Houses and signed by the President on March 3, 1863, provided a temporary government for the territory.

As created by Congress, the Territory extended across an area one-quarter larger than Texas. Today’s state is much smaller but still as large as all six of the New England states combined, with New Jersey, Maryland, and Delaware thrown in for good measure. Traveling from Bonner’s Ferry in the north of the state to Montpelier in the extreme southeast requires a trip of nearly 800 miles, only slightly shorter than a trip from New York City to Chicago.[ii]

Idaho’s Constitution,[iii] which forms the basic governing document of the state, was adopted on August 6, 1889 by a constitutional convention. After the convention concluded its work, the proposed constitution was submitted to a vote of the people with this caution:

“You will bear in mind that there has, never will be, nor is it in the  power of men to frame, a constitution that will meet the views of all. The framers of the constitution fully realizing this fact, labored  earnestly to harmonize all conflicting interests. If twenty  conventions were held it is not probable one of them would frame a constitution with as few defects as the one now submitted for your  examination, and upon which you are to vote.”

These words bring to mind similar remarks of Benjamin Franklin on September 17, 1787:

“I confess that there are several parts of this constitution which I do not at present approve, but I am not sure I shall never approve them: For having lived long, I have experienced many instances of being obliged by better information, or fuller consideration, to change opinions even on important subjects, which I once thought right, but found to be otherwise. It is therefore that the older I grow, the more apt I am to doubt my own judgment, and to pay more respect to the judgment of others… I doubt … whether any other Convention we can obtain, may be able to make a better Constitution. For when you assemble a number of men to have the advantage of their joint wisdom, you inevitably assemble with those men, all their prejudices, their passions, their errors of opinion, their local interests, and their selfish views. From such an assembly can a perfect production be expected?”

Constitution-making can indeed be messy.

Back in Idaho Territory, the convention approved the proposed constitution by a hefty margin and it was ratified in a statewide vote in November, 1889. Congress approved the ratified constitution on July 3, 1890 and President William Henry Harrison signed the bill creating the state the same day, making Idaho our 43rd state, with, at that time, a population of 88,548.

The “Idaho Admission Bill” reads: “Therefore, Be it enacted by the Senate and House of Representative of the United States of America, in Congress assembled, That the State of Idaho is hereby declared to be a State of the United States of America, and is hereby declared admitted into the Union on an equal footing with the original States in all respects whatever; and that the Constitution which the people of Idaho have formed for themselves be and the same is hereby, accepted, ratified and confirmed.”

Idaho’s Declaration of Rights, forming the Constitution’s Article 1, borrows heavily from that of Virginia, which, as a Virginian, I find flattering. There are also many features copied from the U.S. Bill of Rights.

Some unique and interesting features of the Declaration include:

In Section 7, dealing with juries, only three-fourths of the jury is needed to render a verdict in civil actions, and in misdemeanors cases five-sixths of the jury can render a verdict.

Section 9 holds citizens responsible for abusing their right of free speech.

Section 11 prohibits any confiscation of firearms except when they are used in the commission of a felony.

Section 15 provides that there will be no imprisonment for debt in the state except in cases of fraud (i.e., no debtors prisons needed!).

In Section 19, the right of suffrage is guaranteed. “No power, civil or military, shall at any time interfere with or prevent [its] free and lawful exercise.”

Section 20 prevents any property qualification from being imposed on the citizens in order to vote “except in school elections, or elections creating indebtedness, or in irrigation district elections, as to which last-named elections the legislature may restrict the voters to land owners.

Section 22, added in 1994, contains an extensive list of the rights of crime victims. I couldn’t determine when this was added to the Constitution.

Finally, Section 23 of the Declaration of Rights, its final section, guarantees Idaho citizens the right to hunt fish and trap. “Public hunting, fishing and trapping of wildlife shall be a preferred means of managing wildlife.”

In the main body of the Constitution we find a few unique features.

Article 3, Section 20 prohibits gambling in the state, it being “contrary to public policy.” This prohibition does not extend to Indian tribal lands.

Section 24, entitled “Promotion of Temperance and Morality,” is interesting. It reads: “The first concern of all good government is the virtue and sobriety of the people, and the purity of the home. The legislature should further all wise and well directed efforts for the promotion of temperance and morality.” Wouldn’t it be nice if all states did this?

And in Section 28 we find the now ineffective statement: “A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state.”

The Governor, Lieutenant Governor, Secretary of State, State Controller, State Treasurer, Attorney General and Superintendent of Public Instruction all hold their offices for a four year term. The Governor enjoys a line-item veto on appropriations bills, joining 43 other U.S. governors with similar powers.

Interestingly, the legislature must maintain a balanced budget and is prohibited from incurring any debt unless they do so by law and provide, in the authorizing legislation, a plan to pay off such debt within 20 years.

Article 9, dealing with education and school lands, begins with the declaration: “The stability of a republican form of government depending mainly upon the intelligence of the people, it shall be the duty of the legislature of Idaho, to establish and maintain a general, uniform and thorough system of public, free common schools.” (Emphasis added)

Idaho was early settled by Mormons, especially in its southeast sections. We may detect a bit of Mormon backlash in Section 6 of Article 9, when we read: “No sectarian or religious tenets or doctrines shall ever be taught in the public schools, nor shall any distinction or classification of pupils be made on account of race or color. No books, papers, tracts or documents of a political, sectarian or denominational character shall be used or introduced in any schools established under the provisions of this article, nor shall any teacher or any district receive any of the public school moneys in which the schools have not been taught in accordance with the provisions of this article.” Compulsory attendance is mandate between the ages of 6 and 18.

Article 10 provides that Boise shall be the state’s capitol, at least for the first 20 years, after which the state legislature can vote to move it elsewhere, something they have yet to get around to do. Incidentally, ever mindful of their natural resources, Idaho’s State Capitol building is the only one in the nation to be heated by geothermal water from a source 3,000 feet below the ground.[iv]

Article 14, dealing with the Militia makes “all able-bodied male persons, residents of this state, between the ages of eighteen and forty-five years,” a member of the militia, and requires that they “perform such military duty as may be required by law;” unless they have “conscientious scruples against bearing arms.”

Idaho has abundant streams and rivers, but getting precious water to arable lands takes an extensive network of irrigation canals. Not surprisingly, there is an extensive section of the Constitution devoted to “Water Rights.” (Article 15)

Taken in the whole, Idaho’s is a well-constructed Constitution, perhaps explaining why it has remained in force (albeit extensively amended) since 1890.

On March 25, 2016, the state carried on its tradition of being a gun-friendly state by legalizing the carry of concealed firearms without a permit.[v]

Oh, and Idaho’s Great Seal was designed through a contest won by Emma Edwards Green, apparently the only woman to design the official seal of a U.S. state.[vi]

Idaho’s current 1,754,208 residents[vii] wait to welcome you.

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 a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[i] https://www.goldmapsonline.com/idaho-gold-rush-history-and-districts.html.

[ii] https://www.idaho.gov/about-idaho/history/.

[iii] https://sos.idaho.gov/elect/stcon/index.html.

[iv] https://www.history.com/topics/us-states/idaho.

[v] http://concealednation.org/2016/03/permitless-concealed-carry-in-idaho-passes-takes-effect-july-1st-2016/.

[vi] https://en.wikipedia.org/wiki/Flag_and_seal_of_Idaho.

[vii] https://en.wikipedia.org/wiki/Idaho.

Guest Essayist: James D. Best

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“Governments are instituted among Men, deriving their just powers from the consent of the governed.” —Declaration of Independence

In 1776, the world was ruled by royalty. Then some upstart colonialists penned the most revolutionary document in the history of man. The Declaration of Independence flipped the world upside down. The Divine Right of Kings became the consent of the governed. The individual was now “endowed by their Creator with certain unalienable Rights.” This was a world-shattering concept.

The people were now in charge. Our national heritage is a written constitution that sets the rules for governance between the people and their elected representatives. When Pilgrims landed at Plymouth, they almost immediately sat down and wrote a constitution called the Mayflower Compact. When our forefathers wanted independence, they felt a need to express their grievances and philosophy of government in a written Declaration of Independence.  At the time of the Constitutional Convention, all thirteen states had written constitutions.

Prior to the United States Constitution, monarchies wielded general power, and since the Founders had just escaped a monarchy, they would give their national government only defined powers. If a specific power was not expressly listed in the Constitution, then that power remained with the people who could further delegate powers to the state through a state constitution.

Nebraska Constitution

Nebraska was admitted to the union after the Civil War, on March 1, 1867, based on the organic law of 1866. Nebraska adopted their constitution on June 12, 1875, eight years after becoming a state.

The preamble reads, “We, the people, grateful to Almighty God for our freedom, do ordain and establish the following declaration of rights and frame of government, as the Constitution of the State of Nebraska.”

The Nebraska preamble diverts from the United States Constitution preface by calling out “Almighty God” and putting rights ahead of the “frame of government.” Nebraskans gave priority to rights, both in the preamble and organization of the document. The United States Constitution did not initially include a bill of rights and never directly referenced God. (Ratification, however, depended on a promise to immediately amend the Constitution with a list of rights.)

After amendments, the Nebraska State Constitution has the following characteristics:

  • Nebraska legislature is unicameral and nonpartisan. (Unique in the United Sates)
  • Limited to 49 seats. (Smallest legislature in United States.)
  • The legislature is part-time and pays $12,000 per year. Some contend that this make it difficult to find good candidates. Many must drive long distances in bad weather or find temporary lodging in Lincoln. As a result, legislators tend to be wealthy or retired.
  • Nebraska allows a split in the state’s allocation of electoral votes in presidential elections. (Maine is the only other state.) Since 1991, two of Nebraska’s five votes are awarded to the winner of the statewide popular vote and three go to the candidate with the highest vote in each congressional district.
  • The Nebraska Legislature can override the governor’s veto with a three-fifths majority. (36 states require a two-thirds vote)
  • Nebraska has amended their Constitution to provide for an initiative and referendum process. Nebraska’s initiative and referendum process can add or change law or amend the state constitution. Twenty-six states allow for initiatives or referendums and only sixteen states allow for constitutional initiates.

The Nebraska Constitution has been amended 228 times. On November 6, 1934, an amendment converted the legislature to unicameral. Georgia, Pennsylvania, and Vermont were originally unicameral, but all three switched to bicameral in the early nineteenth century. There were no unicameral legislatures in the United States until Nebraska switched. The amendment also reduced the number of legislators from 133 to 43 (since increased to 49).

What are the ramifications?

According to Patrick J. O’Donnell, long-time clerk of the Unicameral Legislature, the nonpartisan nature of the state’s legislative body remains apparent in several meaningful ways.

Legislative officers and committee chairs are elected by members themselves instead of appointed by partisan caucus leaders, and minority party members still do get elected to serve as committee chairs.

O’Donnell says that policy debates frequently tend to be less partisan in tone because of the unique nature of the Nebraska Unicameral and that final decisions are usually made on the merits of an issue rather than on the basis of political considerations alone.

Seventy-four years after its inception, the Nebraska Unicameral remains one-of-a-kind among U.S. state legislatures. O’Donnell says that other states have frequently visited Nebraska over the years to study the workings of the Unicameral, but so far at least, no other state has followed Nebraska’s lead. *

The Nebraska legislature generally has more power than other state legislatures. The unicameral nature removes an internal legislative check and the small size gives each member more authority than their counterparts in other states. Additionally, to override a governor veto requires only 60% of the legislature, rather than the 67% required for a two thirds majority.

The Nebraska Constitution is not controversial and state residents seem content with it. The only current issue deals with the wording of Section I-1, which reads, “There shall be neither slavery nor involuntary servitude in this state, otherwise than for punishment of crime, whereof the party shall have been duly convicted.” A 2020 ballot measure will eliminate the potential of slavery as punishment for crime. Nebraska does not use chain-gangs, so the change will have no practical effect.

The United States Constitution 10th Amendment reads, “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Many believe that powers not defined in the Constitution are reserved to the states. They forget the last two words of the amendment. State power, like national power, is delegated by the people to the respective governments within our federal system.

Politicians may need occasional reminders that all governmental power resides with the people.

*       Council of State Governments, A legislative branch like no other

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

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Guest Essayist: Patrick M. Garry

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South Dakota was admitted to the Unites States November 2, 1889 as the fortieth state. In the same year of 1889, the South Dakota State Constitution in use today was adopted.

On March 2, 1861, President Buchanan signed the bill that created the Dakota Territory. Within this territory were included the present states of North and South Dakota, Montana and Wyoming. After creating the Dakota Territory, the federal government paid relatively little attention to it, given the preoccupation with the war. But as soon as there was sufficient population in the territory, the settlers in the Dakota Territory began taking steps to achieve statehood. Starting in 1868, efforts intensified toward the admission of Dakota, either as a single state or two different states.

Even though the Dakota Territory was being settled during the Civil War, South Dakota did not become a state until 1889.  This long delay in the pursuit of statehood stemmed from political conflicts at the national level.  During the 1880s, for instance, the Democratic Congress opposed statehood for South Dakota, which was seen as a strongly Republican-leaning state. The Democratic Congress resisted admitting a state that was certain to send two more Republicans to the United States Senate. Consequently, the congressional debate on the issue of South Dakota statehood rested largely on a partisan basis.

However, the obstacles to statehood for South Dakota largely disappeared when Benjamin Harrison won the presidential election of 1888, beating Grover Cleveland. President Harrison had been a strong supporter of statehood for South Dakota during his time as senator from Indiana. At the same time, the Republican Party won control of Congress, and the national Republican Party platform of 1888 had stated that South Dakota should be immediately admitted as a new state.

The statehood bill was passed in February of 1889 and authorized the state constitutional convention of 1889, which was to be the first constitutional convention in South Dakota legally recognized by Congress.  The resulting constitution was approved by the people at an election held in October. And on November 2, 1889, President Harrison issued his proclamation admitting South Dakota as a state.

Although the 1889 convention produced the Constitution in effect today, it was not the first constitutional convention convened by statehood advocates.  The first constitutional convention for South Dakota took place in 1883, even though that convention was not authorized by Congress.

The 1883 constitution reflected the political concerns of the times.  South Dakotans sought statehood at a time when railroads and corporate conglomerates played powerful roles on both the state and national scene.  Although the railroads greatly contributed to South Dakota’s development and population, they also threatened to corrupt state legal and political processes.

At the 1883 convention, there were concerns that corporations should pay the same rate of taxes as private individuals, should not be allowed to consolidate, and should receive no aid that is not given private parties. The Convention also required the legislature to regulate railroad rates and prohibit unjust rate discrimination. The convention delegates feared that railroads or other large corporations could exercise excessive influence over the legislature.

A second constitutional convention convened on September 8, 1885.  This convention has been called the most important ever held in South Dakota, insofar as the constitution produced by that convention, with a few minor changes, became the constitution authorized by Congress and ratified by the voters in 1889.

The South Dakota statehood bill passed by Congress in February of 1889 necessitated a third constitutional convention so as to make the 1885 constitution conform to federal law.  By the time the 1889 convention occurred, the Farmers’ Alliance of Dakota Territory was playing a major political role. With declining prices for farm crops and higher production costs, many farmers had fallen deep in debt. For political relief, they turned to the Alliance, which played an influential role in securing the Initiative and Referendum provisions in the Constitution.

Perhaps the most unique feature of the South Dakota Constitution was its provisions on the Initiative and Referendum. South Dakota was the first state in the Union to adopt the Initiative and Referendum, which was later adopted by dozens of other states.

Whereas the Initiative allows the public to bypass the legislature and directly pass new laws in a general election, the Referendum allows the public to repeal a law previously enacted by the legislature. Initiative and Referendum was one of the hallmark causes of the Populist movement of the late nineteenth century.

The Populist movement promoted the Initiative and Referendum as an essential means of achieving economic reforms aimed at controlling the political power of railroads and eastern banks. South Dakota was the first state in the nation to have an active Populist Party, which in 1892 made the Initiative and Referendum a central part of its platform.

The campaign to bring Initiative and Referendum to the Dakota Territory was fueled by the economic events of the time, with Dakota farmers attributing declining commodity prices to the manipulations of railroads and eastern banks, and believing that rural interests would be better able to control those outside entities through the Initiative and Referendum process.

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.

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Guest Essayist: Sam Houston

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While the states which comprise the United States of America each have a unique story and history, the political and constitutional evolution of the great state of Texas is a compelling story in and of itself. I know, for you non-Texans your first response might be “there goes another one of those Texans who believes everything about Texas is bigger, brighter, bolder and more significant than everyplace else in the world”! Admittedly, true Texans are unabashedly proud. They hold an opinion which tends to advance the idea Texas is first in everything and the rest of the world can at best be “first runner up.” However, when one considers the fascinating history of Texas, the uniqueness of her size and the role she played in the growth and development of the United States, her role cannot be overlooked even by the most objective analysis.

Originally explored by the Spanish Conquistadors, Texas was a remote and dangerous land; vast in area and boundaries vague in definition. The aggressive nature of the Lipan Apache, as well as the Comanche and several other tribes, made ordinary settlement almost impossible. After the turn of the 18th century the Mexican government wished to establish a presence in its vast territories and set forth to establish a number of military outposts and Catholic missions, but they were wildly scattered and grew very slowly. Seeking a way to initiate colonization the Mexican authorities ultimately reached out to a gentleman who was from New England, by the name of Moses Austin. In exchange for receiving a significant land grant, Moses agreed to relocate 300 families at this own expense to this raw land called Tejas. This initial land grant to the Austin Colony which became known as San Felipe De Austin, was the beginning of mass immigration to Mexican Tejas from the United States.

At the time in the United States there was what they called an “economic panic” (a recession) and to purchase land from the U.S. Government cost $1.25 an acre and had to be paid in cash. Quite frankly, not many people at the time had cash money and there were not banks, mortgage companies, or savings and loans and the like in which to be able to secure a loan to purchase land. However, in Mexican Tejas, the holders of these huge land grants could give a settler 4,428 acres for ranching, and 177 prime acres for farming, and it was all free! FREE! Can you just imagine? Soon citizens of the United States were pouring into Tejas like water from a bucket with a hole in the bottom!

For these Anglo immigrants coming into Mexican territory, they were accustomed to certain rights, privileges and protections which were guaranteed by the U.S. Constitution; however, in Mexican Tejas these rights simply did not exist. The newly created Mexican government had only recently gained its Independence from Spain and its legal background was based on a far different set of values and priorities than the U.S. Constitution. These differences were even more brazenly made apparent when in the fall of 1835 the President of Mexico, Santa Anna replaced the Constitution of Mexico with the Siete Leyes (Seven Laws). These changes effectively eliminated all state governments in Mexico including Tejas and made Santa Anna a military dictator in command of the entire Mexican nation.

For the Anglo Americans who had immigrated to Texas this elimination of state government and a creation of a conservative, strong, Catholic dominated, centralized government was simply too much and too foreign an idea to accept. Armed conflicts arose and soon the citizens of Texas eventually were in open revolt: declaring their independence from Mexico on March 2, 1836.  Santa Anna attempted to enforce his authority by armed action against the Texicans and was successful at the Battle of the Alamo.  A few weeks later at Goliad, Texas Commander James Fannin surrendered his out-manned and outmaneuvered men, believing they would be treated as prisoners of war by the Mexican authorities. However, under Mexican law the Texicans were nothing other than “pirates” and on Palm Sunday of 1836, all 376 men were shot and their bodies burned as a warning to all who opposed Mexico.

At the Battle of San Jacinto in April of 1836, Texas forces under the command of Sam Houston defeated Santa Anna and ended the Texas Revolution, resulting in the creation of the independent Republic of Texas. The Texas Constitution of 1836 was largely modeled after the U.S. Constitution except it expressly permitted slavery and forbid Indians or slaves to roam freely or to become Texas citizens.

Texas subsequently had revised Constitutions in 1845,1861,1866,1869 and 1876. These changes largely coincide with the significant historical events of Texas joining the Union, seceding to join the Confederacy, and then rejoining the Union of the United States. The current constitution, (the 1876 Constitution), is one of the longest state constitutions in the United States and one of the oldest still in effect. Amendments have been adopted 456 times; an additional 176 have been passed by the Texas State Legislature then rejected by voters.

Most of these amendments are due to the document’s highly restrictive nature. It states that the State of Texas has only those powers explicitly granted to it; there is no state equivalent of the necessary and proper clause to facilitate controversial legislation. Thus, the Texas Constitution functions as a limiting document, as opposed to the U.S. Constitution’s purpose as a granting document.

Right from the very start, the citizens of Texas wanted political power to vest in its individual citizens and for their government to be unable to “expand” their power at its own whim. In Texas, the right of the individual to be free from government intrusion, to be free from an expansive government, to be free from tyranny began with the societal experience of its American immigrants and was sharpened by the authoritarian rule of Santa Anna. Forever more its founding fathers wanted Texas to be free from abuse, intrusion, and over reaching by its government. The constitution of Texas so reflects this attitude and the attitude which formulates much of the current political climate of Texas today.

Sam Houston has had the good fortune to experience a wide variety of professional endeavors. He was an award-winning trial lawyer and the 1992 recipient of the Oklahoma Bar Associations “Courageous Advocacy Award”. He has been heavily involved in the horse industry having served on the Board of Directors of the National Reining Horse Association for many years. He created and hosted a national television show “Inside Reining” which received the coveted Vaquero Award from the National Cowboy Hall of Fame for excellence in promoting the Cowboy lifestyle. He is a playwright, author, actor, public speaker, and the star of “The Lion of Texas-An Evening with Sam Houston”; a one man play about his namesake and most iconic character in Texas history. Currently he is the General Manager of the Granbury Live Theater in Granbury Texas where he proudly lives with his wife Teresa.

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Guest Essayist: Joerg Knipprath

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After the adoption of the Constitution, the next significant use of this compact theory occurred in the Virginia and Kentucky Resolutions of 1798/9, authored by James Madison and Thomas Jefferson, respectively, and triggered by the Adams Administration’s Sedition Act. These resolutions held that Congress had only limited and delegated powers. If Congress legislated beyond those powers, it invaded the reserved powers of the states and threatened to consolidate power in itself. Division of powers existed to protect the people’s rights against tyranny. A state government could, perhaps even must, then declare the unconstitutional nature of the Congressional action. Beyond that, matters got murky. The means of redress were left to each state. For Virginia, this included interposition of state authority between its citizens and Congressional usurpation of their rights. Whether this went beyond seeking political change by pressuring Congress to repeal the law or petitioning that body to call a constitutional convention under Article V of the Constitution, to actively using state executive authority to prevent enforcement of the federal law, was not discussed. Though it was implied, there was no clear assertion that the state’s action (by itself or in concurrence with others) outright nullified the offensive law. The more radical Jefferson, however, did allow that a state could nullify the offending federal law within its territory.

The 1798/9 Resolutions and the earlier debates on the Constitution featured prominently in subsequent national controversies. Similar expositions of the federal structure were used to justify the actions of New England Federalist Party politicians at the Hartford Convention in 1814 and the more radical ideas–such as secession–that were proposed there for future consideration.

Calhoun proposed his doctrine of state nullification of unconstitutional federal laws in his Exposition and Protest against the Tariff of 1828. In subsequent writings, such as his 1831 Fort Hill Address, he further developed and refined the constitutional foundation for nullification. At the same time, he also undertook to provide a constitutional basis to protect the rights of political minorities through his doctrine of “concurrent majorities.” Acts of government whose burdens fell heavily on a particular (geographical) minority had to be approved both by the national majority and that minority.

While Calhoun began with the same assumptions about the “compact nature” of the Constitution and the political structure which it comprised, he added some important refinements. Each part, the Union and the States, had their assigned powers. Neither could invade the powers of the other, as delegated to the former and generally reserved to the latter. The difficulty lay in resolving conflicts that might arise over their relationship. Interposition, as accepted in the Virginia and Kentucky Resolutions, and nullification, as asserted by Jefferson in the latter, were prerogatives retained by the States against constitutional usurpations by the general government. But those tools were forms of protest, not resolution of conflict. The general government, being a creature of the Constitution, could not, through its agents, sit as judge in its own cause.

Calhoun relied on that 18th-century American contribution to political theory, the constitutional convention, to supply the remedy. Sovereignty lay in the people, as both sides agreed. As shown by the process of the Constitution’s adoption in the 1780s, an ultimate act of political association–and, by analogy, disassociation–by the people of a state required their consent. Since nullification of a federal law placed the state on a path to secession, the people must approve that initial step.  It was not possible, as a practical matter, to gather the people as a whole to debate and decide the matter. Hence, the action had to be undertaken by a special body elected by them and assembled for only that purpose. Only if the convention voted to nullify the federal law might the state legislature enact an ordinance of nullification. If the proper process of nullification was completed, it was up to Congress to resolve the controversy by calling a convention under Article V of the Constitution. If that convention voted in agreement with the state, and the convention’s action was approved by three-fourths of the states, the federal law was nullified. If the nullification was not approved either by the convention or the other states, the original state might vote to rescind the nullification or move to secede.

Calhoun’s proposal was built on existing constitutional process in Article V. However, he cleverly extended its reach because Article V required two-thirds of the states to petition Congress for a convention, while Calhoun’s convention was precipitated by the action of a single state. On the other hand, Calhoun stopped well short of the most rigid states’ rights position that potentially would legitimize nullification of a federal law within a state by the action of that state alone. Enough other states still had to concur to satisfy Article V, which assured against frequent resort by states to such a destabilizing course. Calhoun struck a balance between the interests of “Liberty and Union” in a manner that sought to avoid the extreme confederationalism of the unconditional nullifiers and secessionists, on the one hand, and of the biased nationalism of Congress and the Supreme Court. The former, after all, had been rejected by the language of the Articles of Confederation, in the ratifying debates on the Constitution, and in the formal rejection by many states of the Virginia and Kentucky Resolutions. At the same time, neither the Congress–despite the structure of the Senate–acting politically, nor the Supreme Court, acting judicially to balance Congress’s powers under the Constitution with the Tenth Amendment, could be relied on as fair arbiters of national-state disputes.

Today, Calhoun’s approach lacks constitutional legitimacy, as do more radical theories of nullification and secession. Yet, one can detect more than a faint connection between the broad claims of earlier nullifiers and secessionists and what has sometimes been called the “neo-Confederate” position of California and other “sanctuary” cities and states regarding the harboring of aliens living in the United States in violation of immigration laws. But, as Calhoun and the earlier Antifederalists worried, the other constitutional protections against “consolidation” have proven inadequate to the task. The states can go, hat in hand, to plead their case politically to Congress or in litigation to the Supreme Court. But the Senate is, as often as not, a happy collaborator in expanding federal power at the expense of state autonomy. The Supreme Court, in turn, has declared the Tenth Amendment a mere “truism” and, excepting a few timid anomalies, appears content to strain constitutional language ever-more to extend the reach of federal power. Perhaps it was inevitable due to human nature and the inbuilt structural imperfections of the system, as the Antifederalists charged, or perhaps it is the result of the complexities of a massive modern industrial society, but today’s “federalism” is patently not the Founders’ declared vision.

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

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Guest Essayist: Joerg Knipprath

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A persistent controversy during the Founding Period was the nature of the union and its relationship to the states. The issue had its antecedents during the colonial period in Benjamin Franklin’s proposed Albany Plan of Union in 1754. That unsuccessful proposal for–mostly–a defensive alliance among the colonies sought to produce a federation, “by virtue of which one general government may be formed in America…within and under which government each colony may retain its present constitution, except in the particulars wherein a change may be directed by the said act.” Franklin’s proposal bore a striking resemblance to more far-reaching subsequent attempts at union, such as the unsuccessful plan by Joseph Galloway in the First Continental Congress and the even more ambitious Articles of Confederation in the Second Continental Congress.

Common to all of these constitutional efforts was the confederal nature of the structure, with power emanating from the constituent colonies (or states) and granted to the federal “head.” Thus, the colonial assemblies or state legislatures selected the members of the union’s policy-making body, the powers of that body were limited to enumerated objectives that affected the union as a whole, and all other powers were expressly reserved to the constituent colonies or states. The Articles of Confederation–the most important effort until then, in that they created a more sophisticated and consummated plan of government–struck a delicate balance between federal power and ultimate state sovereignty. While the Congress had fairly significant powers that could be exercised either by a majority of the assembled states or, sometimes, by nine out of thirteen in the potentially delicate areas of taxation, commerce, and military mobilization, the Congress acted on the constituent states, not on the residents directly. As well, while states were authorized by the Articles to send multiple delegates to represent them in Congress, each state could cast only one vote. Finally, each state was described as having acted in its corporate capacity to create the union, and, to be part of the union, each had to approve the Articles, thereby clearly anchoring the locus of sovereignty in the independent founding states.

Debate over the Constitution of 1787 in the Philadelphia drafting convention and in the subsequent state ratifying conventions also focused significantly on the nature of the union and the relationship of the state and federal sovereignties. Opponents of the Constitution claimed that the states’ sovereignty had been destroyed. They warned, loudly, frequently, and widely, that the states’ republican essence was threatened by this new “consolidated” government, a freely-hurled epithet that threw the Constitution’s proponents on the rhetorical and political defensive.

As evidence for alarm, the Constitution’s opponents pointed to the broad new powers through which Congress acted on individuals directly and by-passed the states; the supporters pointed out that those powers were few in number. The opponents raised the availability of further implied powers, especially as embodied in the “necessary and proper” clause; the supporters (eventually) agreed in the Tenth Amendment that the states retained all powers not given to the general government; the opponents charged that this assurance fell far short of the Articles which had declared that the states retained all powers not expressly conferred on the Congress. Opponents claimed that the Constitution shunted aside the state sovereignty by declaring that the “People of the United States” had established the Constitution; supporters responded that the original draft had been that the “People of the States of [named 13 states]” had established it, but that there was no assurance that all thirteen states would eventually approve it, so the language was changed as a matter of form, not substance. Opponents pointed out that state conventions, not legislatures as constituent part of the state sovereignties, would approve the Constitution, and that only nine were necessary to do so; supporters rejoined that this reflected the ultimate sovereignty of the people and that, in any event, each state that wanted to be part of this new arrangement had to approve the Constitution.

James Madison in Federalist 39 made an earnest, though not always convincing, effort to minimize the changes from the Articles, by explaining how some of the Constitution’s characteristics indeed were national but that in many fundamental ways the new system retained its federal essence. Both sides were deeply at odds in their perceptions about the nature of the new constitutional structure. The position of Madison and other supporters of the Constitution was that there existed a dual sovereignty in this new federalism undergirded by the ultimate sovereignty of the people acting in and through the several states. Their critics dismissed this as nonsensical. Ultimately, practical sovereignty had to lie either with the state governments acting on the people or with the national government doing so. To the critics, the answer was clear, that the national government would expand its reach and destroy the state governments, consolidating all power within itself. The republic would end, and tyranny would rule.

Once the Constitution was adopted, the struggle turned to the issue of how, as a practical matter, to preserve state sovereignty and self-government within this novus ordo seclorum. One tool lay in the structure of the government itself. The Senate not only was a political counterweight for the small states against the larger states’ general influence in the economic and political direction of the union and their numerical power in the House of Representatives. That argument had been the tool to broker the great compromise in the early summer of 1787 that prevented the looming break-up of the convention. As well, the Senate, with its equal votes for each state, and a selection process that tied the membership directly to the legislatures of their state governments, represented what remained of the constitutional idea of a federalism resting on the constituent states. At least until the fundamental constitutional change wrought by the 17th Amendment, the state governments’ control of the Senate would negate or, at least, blunt efforts by the “popular” branch, the House of Representatives, to accrete power in the federal government at the expense of the states.

The extent to which the Framers’ envisioned role for the Senate was realized is unclear. The emergence of organized programmatic political parties introduced a variable that might redirect the loyalty of a senator from his state to a party and its national policies. On the other hand, senators were remarkably able in matters of great national controversy to focus on their home state governments’ political preferences and oppose their same-party fellows from other states who entertained contrary political positions. Senators’ votes on great national issues in the first half of the 19th century on war policy, tariffs, slavery, and, indeed, the nature of the union itself typically reflected whatever benefitted those Senators’ states, even at the risk of tearing apart the parties with which they were affiliated. The respective positions of Senators Daniel Webster of Massachusetts and John C. Calhoun of South Carolina on these matters are examples, even as they switched positions as their states’ interests required.

Calhoun, especially, recognized the increasingly tenuous hold of Southern states on the Senate and sought to develop a systematic constitutional theory to protect particular state institutions from national control. His specific concerns were, initially, the matter of protective tariffs sought by Northern manufacturing interests and opposed by Southerners as economically ruinous and, subsequently, preservation of the “peculiar institution” of slavery. As a more fundamental objective, he sought to bolster the ability of states generally to resist the consolidation of government in an increasingly self-regarding and confident American “nation.”

The constitutional case for vigorous state sovereignty to counter the dangers from a consolidated general government had been made frequently by the Constitution’s critics during the ratification debates. Their claim rested on the principle that the union was a compact of States. They pointed to the fact that the Constitution’s legitimacy rested on approval by the states; that the Constitution’s proponents frequently had asserted that the plan was not a revolutionary new system but an improvement of the extant one, as expressed in the Preamble’s objective to “form a more perfect Union;” and that failure to adopt the new plan would not mean the creation of 13 fully independent entities, but, rather, continuation of the earlier plan that had established a “perpetual union.” The shift from approval by the state legislatures under the Articles of Confederation to approval by state conventions under the proposed document merely reflected a more refined understanding of republican theory that fundamental alterations must reflect as clearly as practicable the consent of the governed.

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

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Guest Essayist: Val Crofts

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Thirtieth to join the United States, Wisconsin, known as “The Badger State,” ratified the     U.S. Constitution May 29, 1848. The Wisconsin State Constitution currently in use was adopted in 1848.

“On Wisconsin!” were words exclaimed by Arthur MacArthur Jr. at the Battle of Chattanooga in 1863 urging his fellow Badgers on during an important phase of the battle for which he was awarded the Congressional Medal of Honor. The state’s official slogan is “Forward!” which embodies the spirit of LTG MacArthur and the spirit of the people who live here today. Citizens of Wisconsin are always looking to innovate, expand and advance, but they are appreciative of their past as well.

Wisconsin received its name from the river that runs through the center of the state named by the Miami Indians. The word “Wisconsin” means “river running through a red area” and may possibly refer to the beautiful red bluffs located near today’s city of Wisconsin Dells. For 10,000 years, Wisconsin has also been home to various Native American tribes including the Oneida, Chippewa, Menominee, Ho-Chunk, Sauk and Mahican.

In 1634, European explorer Jean Nicolet was the first European to have landed in Wisconsin near the present city of Green Bay. The French attempted to colonize the area and operated a very successful fur trade in Wisconsin. The French established a military and commercial presence in Wisconsin until after the French and Indian War, when the Great Britain assumed control of the area. The U.S. acquired what is today Wisconsin after the Treaty of Paris in 1783, ending the American Revolution.

In 1836, the Wisconsin Territory was organized and the first territorial legislature met in Belmont, Wisconsin. In 1848, Wisconsin was admitted to the Union as the 30th state with Madison being designated as its capital city.

The Wisconsin Constitution was written at the state’s Constitutional Convention in Madison in December of 1847 and was approved by the citizens of Wisconsin Territory in 1848. This original Constitution has been amended over 100 times but is still in use today, making it the oldest state constitution outside of the New England states. At first, the Wisconsin Constitution granted suffrage to white male citizens over 21 and to Native Americans who were citizens of the United States but it did allow suffrage to change over time as the state legislature intended it to. The banking industry was very controversial in Wisconsin at this time and the idea of the state chartering a bank was voted on at the same time as the state Constitution was ratified. With this vote, the citizens of Wisconsin allowed the state to charter banks within its borders.

Today’s Wisconsin Constitution consists of a Preamble, thanking Almighty God for the freedoms that citizens of the state are blessed with, and then 14 Articles. The first article is a general declaration of rights as citizens of Wisconsin. This allows Wisconsin citizens to live under the same freedoms as the United States Bill of Rights, to prohibit prison sentences for debt, place military under the control of civil authorities, and guarantees our citizens the right to fish and hunt.

The Wisconsin State Legislature is described in Article Four of the state Constitution and is a bicameral lawmaking body comprised of the Wisconsin State Assembly and Wisconsin State Senate. The 4th Article allow states how state representatives are elected and sets forth the powers and limitations of our state legislature.

Article Five establishes the Legislative Branch in Wisconsin. The state’s executive branch consists of a governor and a lieutenant governor, who are each elected to serve four year terms. The powers and duties of the state executive are also outlined here as well, including the line-item veto over appropriation bills. The succession chain of governance is also outlined here, should the governor resign, be recalled or pass away.

The Judicial branch is established in Article Seven and grants the state a Supreme Court, composed of seven Justices, each holding 10-year terms. The Constitution also creates the Wisconsin Circuit Court system, as well as the Wisconsin Court of Appeals. The state may also set up courts and jurisdictions over cities, towns and villages within the state. The impeachment process of state officials is outlined here as well.

The original Wisconsin Constitution document is unfortunately missing and the copy on display in our state capitol building is a replica. The original may have been sent to a publisher and lost somewhere along the way. Fortunately for the citizens of Wisconsin, the words and ideas embodied within the document still exist and will endure far into the future. On Wisconsin!

Val Crofts is a Social Studies teacher from Janesville, Wisconsin. He teaches at Milton High School in Milton, Wisconsin and has been there 16 years! He teaches AP U.S. Government and Politics, U.S. History and U.S. Military History. Val has also taught for the Wisconsin Virtual School for seven years, teaching several Social Studies courses for them. Val is also a member of the U.S. Semiquincentennial Commission celebrating the 250th anniversary of the Declaration of Independence and is honored to participate in this Study on the States!

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Guest Essayist: Samuel Postell

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“The Show-Me State” of Missouri ratified the U.S. Constitution August 10, 1821 making it the twenty-fourth state to join the United States. The Missouri State Constitution currently in use was adopted in 1945.

Missouri’s application for U.S. statehood was not only an important event in the state’s history, but is among one of the most important events in our nation’s history. Before Missouri’s application for statehood, the abolitionist factions of the Union were relatively quiet and the Southern defense of slavery as a “positive good” had not yet begun. After Missouri’s application for statehood, it became clear that slavery would become a national issue that would divide the sections of the Union, perhaps to the point of civil war.

Missouri first applied for statehood in 1817, but Congress did not begin to consider enabling acts to allow the territory to create a state constitution until February of 1819. At the end of the day on February 18, 1819, James Tallmadge introduced his amendment which would spark the controversy between the Northern States and the slaveholding states. Tallmadge proposed an amendment that would free all children born of slaves after Missouri had become a state, as well as free all slaves in the state of Missouri once they had reached the age of 25. Various Northerners, particularly from New York and Pennsylvania, began to see such an amendment as a necessary condition for Missouri to become a state.

The Southerners responded with gusto. They feared that such amendments coming from the national congress infringed on the right of a state to determine its own laws, and they feared that such legislation would upset the balance between free and slave states in Congress. The consequence of this, they believed, would be the ultimate extinction of slavery in the Union. And perhaps they were correct: Representative Livermoore urged the House, just before it voted upon the Tallmadge Amendment, that “An opportunity is now presented, if not to diminish at least to prevent, the growth of a sin that sits heavy on the soul of every one of us.” The House voted to include the Tallmadge amendment in a vote of 79 to 67.

But that was not the last word on the Tallmadge Amendment. Although it had passed the House, it had to be accepted by the Senate which was composed of a majority that was principally opposed to the Federal government meddling with slavery in the territories. Thus, the Senate immediately rejected the Tallmadge amendment as part of the Missouri enabling act. Throughout the rest of the Congressional session, the two houses would deliberate upon the Missouri issue, but neither the Northerns in the House nor the Southerners in the Senate would give way. The Congressional session would end with Thomas Cobb’s admonition to Tallmadge that “the Union will be dissolved. You have kindled a fire which all the waters of the ocean cannot put out, which seas of blood only can extinguish.” Tallmadge merely responded “so be it.”

The deliberation over Missouri not only occupied the House for the months of February through May of 1819, but it took the Congress the remainder of that year and half of the next to sort out the Missouri question. While the Congress was out of session several petitions were generated in Northern states urging their representatives to deny Missouri’s statehood if that entailed the spread of slavery, and some Southern petitions were signed that threatened secession if Congress blocked Missouri. The nation was on the brink of civil war, the representatives of the people were threatening one another in the chamber, and the nation was facing the greatest economic recession that it had yet seen. What was to be done?

As the Speaker of the House, Henry Clay did something that seems counterintuitive: he delayed the Missouri question for the first half of the following Congressional session, and created a committee. He placed a New Yorker who had been involved in the debates over the Tallmadge Amendment at the head of that committee, and he placed a balance of Northerners and Southerners on that committee. Only in that committee could Missouri be spoken of. Clay attempted to stall while the Senate prepared its bill for the House. He wanted to quell the passions of the much larger body of representatives in order that they not evoke civil war throughout the debates that were to come.

Meanwhile, the House of Representatives began to speak of Maine’s admission to statehood. The first day of deliberation upon Maine, Henry Clay left the Speaker’s chair in order to set the stage for debate. He wanted to assure the Northerners that they had much to lose with the debates over Maine if they continued to give the Southerners ultimatums regarding Missouri. If Maine could not be accepted as a state, then the Northerners would lose any opportunity of equaling the Southern representation in the Senate, and this could have long term consequences.

Eventually, the Senate decided to tie Missouri and Maine together as an enabling act, and add an additional proviso excluding slavery from all remaining lands of the Louisiana Purchase north of the 36° 30′ parallel, thanks to Jesse B. Thomas of Illinois. What followed was much heated debate within the House over the bill, eventually leading Clay to organizing a joint committee of representatives in the House and the Senate to deliberate upon the bill. In order to finally pass the bill through the House, Clay had to separate the three bills and pass each individually. Each bill passed by a narrow margin, but what was most important was that the nation averted civil war in the process of accepting two new states.

Henry Clay would thenceforth be known as the “Great Pacificator” for his work in promoting compromise within the House of Representatives. At the end of that session, he would leave the house with a challenge to preserve Union and liberty. He told his colleagues,

“I shall regard (this House) as the great depository of the most important powers of our excellent constitution; as the watchful and faithful centinel of the freedom of the people; as the fairest and truest image of their deliberate will and wishes; and of that branch of government where, if our beloved country shall unhappily be destined to add another to the long list of melancholy examples of the loss of public liberty, we shall witness the last struggles and its expiring throes”

Although the Union had been threatened, and civil war had been evoked, the nation proved its fitness to brave the sirens of civil war through representative deliberation and choice led by selfless compromise.

Sam Postell is a current Graduate Student at the University of Dallas and a former literature teacher at a high school in Dallas Texas. He has two book chapters under publication with the University of Missouri Press, one on the Missouri Compromise, and another on Henry Clay as Speaker of the House. He is currently working on a book on Henry Clay’s Political Thought

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Guest Essayist: Daniel A. Cotter

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Admitted to the Union December 3, 1818, Illinois is the twenty-first state to ratify the U.S. Constitution. Known as “The Prairie State” as well as the “Land of Lincoln,” the Illinois State Constitution adopted in 1970 is the version currently used.  The first state constitution, however, was adopted on August 26, 1818.

Becoming a State

In April 1818, Congress passed a bill, contemplating admitting Illinois as a state if it could show that it had a population of at least 40,000 in the territory.  As my friend, Ann Lousin, notes in an excellent Chicago Daily Law Bulletin column published in August 2018, that was a tall order for the territory to complete, because the territory was well short of the required number set by Congress.  Nonetheless, the territorial governor and associates submitted to Congress that the population of white residents exceeded 40,000, and that part of the process was done.

The Illinois Constitution

Congress required that each new state have a constitution.  Delegates were selected and they met in Kaskaskia, Illinois, thirty-three men gathered at a tavern to draft a constitution.  Borrowing heavily from the Kentucky constitution, where many delegates had come to Illinois from, as well as the constitutions of Ohio and Indiana (two states that were part of the Northwest Territory), a very small group drafted the constitution.  Except for one issue, there are not records of much debate over this constitution to be submitted to Congress.

The one issue that the delegates debated heavily was the question of slavery.  Factions for pro-slavery and abolitionists sought compromise and while most of Illinois was “free soil” the Illinois Salines were permitted to have slavery.  In addition, a compromise was agreed upon, with any slave who was currently in the state remaining a slave, though their children would become free upon reaching adulthood. With this agreed upon as well as the seat of the new state’s government, the constitution was adopted on August 26, 1818. That date is proudly displayed on the Illinois state flag in the center.  The adopted constitution was submitted to Congress and, on December 3, 1818, President James Monroe signed the enabling act that admitted Illinois as the 21st state to the United States.

The initial constitution of Illinois has been amended on three occasions since 1818- in 1848, 1870 and 1970.  The last constitution granted home rule powers for certain municipalities, including the City of Chicago.

The preamble to the Illinois Constitution has a flavor that is definitely familiar, stating:

We, the People of the State of Illinois—grateful to Almighty God for the civil, political and religious liberty which He has permitted us to enjoy and seeking His blessing upon our endeavors—in order to provide for the health, safety and welfare of the people; maintain a representative and orderly government; eliminate poverty and inequality; assure legal, social and economic justice; provide opportunity for the fullest development of the individual; insure domestic tranquility; provide for the common defense; and secure the blessings of freedom and liberty to ourselves and our posterity—do ordain and establish this Constitution for the State of Illinois.

In 1968, the question of whether to hold a constitutional convention was on the ballot, and it passed.  As noted, a big feature of the new constitution that came out of that convention was home rule, which transferred power from the smaller rural communities to the more urban centers.  Ratified on December 15, 1970, Illinois adopted a new, modern constitution, one of the few post-World War II constitutions among the states.  The fourteen articles of the current constitution create the traditional three branches of government.  The 1970 Constitution also includes an extensive Bill of Rights and Article X guarantees a free public education for all Illinois residents.

Conclusion

Illinois became the 21st state to join the United States.  During the Civil War, it contributed the fourth greatest number of men who served in the Union Army.  President Abraham Lincoln, who was born and raised in Kentucky, was president during the Civil War and “The Prairie State” has become known as the “Land of Lincoln” to honor the 16th President of the United States.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. 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.

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Guest Essayist: Samuel Postell

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The seventeenth state to enter the Union, known as “The Buckeye State,” Ohio ratified the U.S. Constitution on March 1, 1803. The current Ohio State Constitution in use was adopted in 1851.

The study of state constitutions is perhaps the most important study that Americans can undertake, yet the most neglected. Understanding the constitution of the state within which one holds residence is important for two reasons. First, because understanding the laws closest to oneself equips one to become a citizen in the truest sense, one who participates in the city with his fellow citizens and engages in the community. And second because the state constitutions, in preserving the past while being layered by amendments of the present, reveal the history and development of the American regime.

Ohio’s state constitution is paradigmatic in the latter sense. The Buckeye State was the 17th state to join the Union, and it was accepted to statehood in 1803. The year in which Ohio was accepted to statehood is important insofar as it forms the essential character of the Ohio Constitution: joining a mere 27 years after the nation declared independence, and a mere 14 years after the Federal Constitution’s ratification, it preserves much of what was original to the Union itself. However, the Ohio Constitution, being ratified after the election of 1800, just after the first major shift in party control, gives Ohio an important place in the new notions of politics that developed during Jefferson’s term as president. Jefferson himself referred to the election of 1800 as the “revolution of 1800”, and considered it in many respects more important than the revolution of 1776 because it marked a dedication to a more democratic mode of politics.

Nevertheless, Ohio’s Constitution was decidedly anti-revolutionary. For example, the original 1803 Ohio Constitution was a work of brevity; the entire 1803 Constitution is shorter than “Article VIII: Public Debt and Public Works” which was added in 1851 and amended various times throughout the 21st century. Further, the 1803 Ohio Bill of Rights mirrors the philosophy and form of the constitutions of the original 13 states. For example, the Bill of Rights begins by setting forth the ends of government, emulating the Declaration of Independence: “That all men born equally free and independent, and have certain natural, inherent and unalienable rights… every free republican government, being founded on their sole authority, and organized for the great purpose of protecting their rights and liberties, and securing their independence.” Like other state constitutions, point 3 of the Ohio Bill of Rights aims to protect the “natural and indefeasible right to worship Almighty God according to the dictates of conscience” and asserts

“But religion, morality and knowledge being essentially necessary to good government and the happiness of mankind, schools and the means of instructions shall forever be encouraged by legislative provision not inconsistent with the rights of conscience.”

Thus, Ohio, like other States of the Union at the time, saw establishments such as religious schools absolutely necessary and conducive to free government. Like other states of the Union, the original Ohio Constitution saw religious establishments and public schools dedicated to advancing Christianity as perfectly consistent with separation of church and state. What the state did reject as inconsistent with separation of church and state was coercion, forced attendance to a certain church, and religious tests for office.

In addition, the original Ohio Constitution embraced the republican spirit of the entire country by adopting a structure which empowered the Congress and weakened the governor. The 1803 Ohio Constitution established a bicameral House consisting of a Senate and a House, called the “General Assembly.” Section 1, Article 16 reads “bills may originate in either house, but may be altered, amended or rejected by the other.” Article 2, however, gives the governor of the state no power to alter, amend, or reject legislation. Additionally, the Congress has the power of impeachment. The Governor, on the other hand, only has the power to propose general elections to fill vacancies in the Congress, and he may call a special session, on the condition that he openly declare before the members of Congress the reason for convening them. In other words, the Governor had little to do with the creation of the laws of the state, he merely wielded the power of enforcement.

However, over time the Ohio Constitution has departed drastically from its original form. The most clear departure from the original constitution was the 1912 Ohio Convention. The most striking contrast between the Constitutional Convention held in 1802, and the convention held in 1912, was the national attention that each convention garnered. At the time of Ohio’s original convention, it was widely held as a principle of federalism that the federal government ought to allow people of a territory to craft a constitution for their own governance. By 1912, the understanding of federalism had shifted and all eyes were on the Ohio Convention of 1912. For example, Teddy Roosevelt, William Jennings Bryant, William Howard Taft, and even California’s Governor Hiram Johnson addressed the convention in order to advise it.

The convention assembled to rewrite the constitution, but after much debate they settled on proposing several amendments. In the end 41 were proposed and 33 were accepted and added to the constitution after a special election that allowed the people to vote upon the proposed amendments. Most of these amendments aimed at fixing the constitution because it was believed by many to be “outdated” and “inefficient.” The most important of the amendments accepted were the “line item veto” and the “initiative and referendum.” These and similar reforms were grafted onto many of the original constitutions of the states throughout the progressive era and drastically changed the way in which the people in the states, and therefore the nation, governed itself. Unlike the original constitution which left little room for the enervated governor to operate, the line item veto greatly increased his power by giving him the authority to reject certain parts of a bill passed by the legislature without vetoing the entire bill. Similar amendments providing a line item veto were adopted by 43 of the states throughout the progressive era. However, the initiative and referendum is perhaps the most pronounced change from the original constitution. The initiative and referendum gives the people of the state the power to overturn or even pass laws by popular ballot, entirely circumventing the legislative process.

In short, the changes to the Ohio Constitution mirror the changes of the nation. As Ohio has weakened the legislature and expanded the executive power while affording the power to the people through the initiative and referendum, so has the nation chipped away at the federal legislature and empowered the executive. The progressive era fostered many reforms which sought to make the people more directly participate in their government, and strengthened the executive in order that he represent the will of the people. These changes first took place in states such as Ohio, but slowly began to penetrate the nation and become the new norm. All in all, the original Ohio Constitution differs drastically from the constitution which governs Ohio today, so much so that one may conclude that the state adopted an entirely new form of government in the year 1912.

Sam Postell is a Graduate Student at the University of Dallas and a former literature teacher at a high school in Dallas Texas. He has two book chapters under publication with the University of Missouri Press, one on the Missouri Compromise, and another on Henry Clay as Speaker of the House. He is currently working on a book on Henry Clay’s Political Thought

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Guest Essayist: The Honorable Robin Smith

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Who knew that the land mass of Tennessee was represented at the signing of the Declaration of Independence? Who knew that the geography that has earned the moniker, the Volunteer State, was first governed by another state’s constitution?

That’s right. Tennessee was first part of North Carolina. Looking at the map[i], deduction proves accurate noting the “Overmountain Region” that formed western North Carolina until the area had ample population to seek statehood. America’s sixteenth state at its founding was comprised of a small number of counties that formed the District of Washington in the now northeast portion of Tennessee and an area called Davidson, which included today’s Sumner County, helped form the County of Tennessee in 1788 along with modern-day Montgomery, Stewart, Dickson, Robertson and Cheatham Counties. The District of Washington spawned several other counties, such as Sullivan, Greene and Hawkins. The remaining expanse of Tennessee was identified as “Indian Lands.”[ii] But, the organization of inhabitants in the Appalachians credited to have the first constitutional government west of the mountains, dates back to 1772 with the Watauga Association, a frontier pact, that lasted just a few years but became the basis of the District of Washington of North Carolina.[iii]

It’s now understandable why the Tennessee Historical Magazine of 1915 features a writing entitled, “The Development of the Tennessee Constitution” with the subtitle, “The North Carolina Constitution of 1776” with the first line to read: The constitutional history of Tennessee properly begins with the adoption by the revolutionary congress of North Carolina, in 1776…[iv] The appointed governor of Tennessee immediately following the acceptance of the cessation papers by the U.S. Government in 1790 was William Blount, who served from 1790 until official statehood in 1796 in what was deemed the “Southwest Territory.”

During this time a 4-week convention comprised of 55 delegates was held in Knoxville to establish the first constitution of a new state. Upon completion, the governing document was sent to Philadelphia, home to young America’s seat of governance, for review by the U.S. Congress and ultimately signed by President George Washington giving Tennessee immediate statehood on its day of birth, June 1, 1796. It would be later said by Thomas Jefferson of Tennessee’s Constitution, based on its North Carolina’s parent and Pennsylvania’s, to be “the least imperfect and most republican of the state constitutions” as it featured specifics on rights, taxes and legislative authority.[v]

The first Tennessee Constitution, handwritten in ink, included provisions related to suffrage that awarded the right to vote to men, without reference to color. A foreshadowing of Tennessee’s stance on slavery in the Civil War to come, Article III, Section 1 enumerated that all freemen (white and black) who were twenty-one years of age and owned a freehold or who had resided in the county six months the right to vote. The document also provided that men serving in the state militia had the right to elect their own officers.[vi]

But, the newly formed state, led by its first elected Governor John Sevier, would not provide that same right to women at its founding. But, fear not. True to its independent spirit, the story of women’s suffrage in Tennessee would prove not just important to its own citizens, but historic to all of American women.

Despite states efforts to award suffrage to females beginning in the late 1840s for local and state elections, the same right to vote had eluded them for federal elections. Finally, on May 21, 1919, the U.S. House voted 304-89 to pass an amendment to the U.S. Constitution that featured 39 words that would forever change American politics if thirty-six states, the requirement at the time to amend the U.S. Constitution, voted to support the 19th Amendment. It wasn’t until June 4, a few weeks later, that the U.S. Senate finally followed suit with a 56-25 vote margin. [vii] The effort then ensued to reach that needed thirty-six states to reach the constitutional threshold to amend the U.S. Constitution.

While Wyoming was the first state to award women the right to vote in 1890, the first states to pass the necessary legislation to ratify the U.S. Constitution following Congressional action were Illinois, Wisconsin and Michigan in 1919. As the Woman Suffrage Movement organized, mobilized and energized state legislative leaders with their efforts to pass the needed enabling ratification proposals, the Summer of 1920 shaped up to be a made-for-the-big-screen drama.

Coming down the homestretch to obtain the threshold 36 states for ratification, Delaware’s state body voted in opposition on June 2, 1920. All eyes and efforts turned to Tennessee to obtain the last needed state with hope fading. Suffragists key to the success in Tennessee who worked with their national leader Carrie Chapman Catt were Ann Dallas Dudley of Nashville, Abby Crawford Milton of Chattanooga, and Sue Shelton White of Jackson.[viii]

A special session was called in the summer of 1920 by then Governor Albert H. Roberts, a Democrat seeking re-election in August of the same year. Both the Suffragists and the Anti-Suffragists set up their headquarters at The Hermitage Hotel that featured a frequented watering hole that afforded women access for their lobbying efforts. Adopting roses to don the lapels of legislators to serve as emblems of support or opposition, roses – either yellow or red – became the sign of Tennessee’s War of the Roses.

Quickly passing the Senate Chamber, the battleground was set in the TN House Chamber comprised of 99 members. Men wearing the yellow rose boutonnière were counted as supporters and those sporting the red rose were in the camp of the “Anti’s.” A couple of weeks of motions and parliamentary maneuvers with efforts to table the legislation since defeat was not as simple as anticipated by the majority of Democrats in the chamber, recorded the youngest member of the General Assembly, Harry T. Burn (R-Niota), elected at 22-years-young, voting with the Anti’s while wearing his red rose boutonnière.[ix]

On August 18, 1920, Rep. Harry Burn took the floor of the Tennessee House with a letter in his coat pocket from his mother, Phoebe Ensminger Burn – Febb to her friends. As the votes were cast, the 24-year-old stood, red rose and all, to cast his vote for the yellow rose caucus – he supported women’s suffrage. After a few moments of confusion, House Speaker Seth Walker changed his vote in support to attempt a parliamentary move that would allow subsequent debate and votes. Nevertheless, a stunned crowd watched the momentum shift with little notice.

According to varying accounts, some a bit more dramatic than others, Burn was the recipient of much anger and, tales being tall, was chased up the stairs of the Capitol to find refuge after scurrying out a window, inching along a ledge to safety. Neither historical documents nor interviews with the famed legislator prior to his death in 1977 hold these same details, but the monumental nature of the vote could certainly have generated such high drama.[x]

So, exactly what was written in the seven-page letter that accompanied TN Rep. Harry T. Burn to the House floor on August 18, 1920? His mom had composed a passing notation, squeezed between references to rain and a house and farm purchased by various locals: “Hurray and vote for suffrage and don’t keep them in doubt.” On page six, as the letter seems to draw to a close, Mrs. Febb, a widow declares, “Don’t forget to be a good boy and help Mrs. ‘Thomas Catt’ with her ‘Rats.’ As she [is] the one that put the rat in ‘ratification.’ Ha, no more from mama this time. With lots of love…” The postscript, as any mom will do, was a request for a music selection she wanted her city-going son to pick up to bring home.[xi]

Governor Roberts, formerly opposed to the suffrage amendment, signed the passed legislation into law on August 24, 1920 and transmitted the document to Washington. [xii]

As women look to 2020 to celebrate the Centennial of the Women’s Right to Vote on August 26, the influence of a mother’s love, grassroots activity and yellow roses prove not just a part of history, but historical. Tennessee’s slogan proves true. The Volunteer State, rich with a pioneering spirit and people who’ve been leaders across the years is certainly “America at its best.” From its founding to its future, Tennessee is home to our greatest treasure…her people.

Robin Smith represents the 26th district of Tennessee in the House of Representatives. She chairs the Life and Health Insurance Subcommittee. Before serving for the people of Tennessee, she owned her own business and was the GOP State Chair.

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END NOTES

[i] Photo source: https://commons.wikimedia.org/wiki/File:Map_of_the_southern_states_of_America,_comprehending_Maryland,_Virginia,_Kentucky,_Territory_sth_of_the_Ohio,_North_Carolina,_Tennessee_Governmt.,_South_Carolina,_%26_Georgia_(4584052548).jpg

[ii] https://statelibrary.ncdcr.gov/ghl/genealogy/tn-counties

[iii] https://en.m.wikipedia.org/wiki/Watauga_Association

[iv] https://www.jstor.org/stable/42637325?seq=10#metadata_info_tab_contents

[v] https://sos.tn.gov/products/tennessee-state-constitution

[vi] https://cdm15138.contentdm.oclc.org/digital/collection/tfd/id/421

[vii] https://www.loc.gov/rr/program/bib/ourdocs/19thamendment.html

[viii] https://sos.tn.gov/products/tsla/womens-suffrage-tennessee-and-passage-19th-amendment

[ix] https://teva.contentdm.oclc.org/digital/collection/p15138coll27/id/75/

[x] https://www.nytimes.com/1995/08/17/us/tennessee-journal-one-small-vote-for-a-man-brought-one-giant-leap-for-women.html

[xi] http://cmdc.knoxlib.org/cdm/ref/collection/p265301coll8/id/699

[xii] http://suffrageandthemedia.org/source/tennessee-governors-proclamation-suffrage/

Guest Essayist: William J. Federer

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On March 4, 1791, Vermont was the first state admitted to the Union after the U.S. Constitution was ratified by the original thirteen colonies. The current Vermont State Constitution in use was adopted in 1793

The French fortified Lake Champlain by building Fort Sainte Anne on Isle La Motte in 1666. It is considered the first settlement in what would later become the State of Vermont. In 1690, some Dutch Reformed Protestant settlers arrived in the area.

Colonial wars followed between the French and the British:

-King William’s War, 1689;
-Queen Anne’s War, 1710;
-Father Rale’s War, 1722;
-King George’s War, 1744;
-Father Le Loutre’s War, 1749;
-French and Indian War, 1754.

The British finally expelled all French from Acadia. Many were deported back to other colonies, or back to France, or fled south to the Caribbean and French Louisiana, where the name “acadian” became pronounced “cajun.”

Henry Wadsworth Longfellow wrote of this expulsion in his epic poem “Evangeline.”

Britain’s King granted a Royal Charter in 1679 to the fur trading company — The Hudson Bay Company — giving it monopoly control over such a large area that for a long period of time it was the largest landowner in the world, comprising 15 percent of North American acreage. The Hudson’s Bay Company is the oldest continuously operated commercial corporation in North America.

When the British began encroaching further south, the French built Fort St. Frederic in 1734 on Lake Champlain. When the British began encroaching further south, the French built Fort St. Frederic in 1734 on Lake Champlain. In 1759, during the French and Indian War, British commander Jeffrey Amherst advanced with 11,000 soldiers, forcing the French to abandon Fort St. Frederic. The French moved 15 miles further south and built Fort Carillion at a strategic point where Lake George flows into Lake Champlain.

British commander Jeffrey Amherst captured Fort Carillion and renamed it Fort Ticonderoga. “Ticonderoga” is the Iroquois word meaning “where two waterways meet.” The capture of the Fort Ticonderoga allowed the British to begin crossing into French territory west of the Appalachian Mountains. The Mohawks sided with the British, and killed many of the French survivors.

Part of the former French territory was called “Ver Mont,” French for “Green Mountain.” British Colonies of Massachusetts, New Hampshire and New York tried to lay claim to Vermont.

Massachusetts relinquished its claims, but New Hampshire issued land grants to proprietors, who subdivided it into lots. Some lots were set aside for a missionary organization of the Church of England by the name the Society for the Propagation of the Gospel in Foreign Parts, and some lots were for the first clergyman who would settle in each township.

In 1775, just three weeks after the Revolutionary War Battles of Lexington and Concord, Ethan Allen led 83 Green Mountain Boys of Vermont on a courageous expedition to capture Fort Ticonderoga. In the early morning of MAY 10, 1775, Ethan Allen, accompanied by Colonel Benedict Arnold, made a surprise assault on Fort Ticonderoga. The bewildered British captain asked in whose name such a request was being made. Ethan Allen reportedly shouted: “In the Name of the Great Jehovah and the Continental Congress.” The British surrendered in what was one of America’s first victories of the Revolutionary War.

Three weeks after the capture of Fort Ticonderoga, Harvard President Samuel Langdon told the Massachusetts Provincial Congress, May 31, 1775:

“If God be for us, who can be against us?

..May our land be purged from all its sins!

Then the Lord will be our refuge and our strength, a very present help in trouble, and we will have no reason to be afraid, though thousands of enemies set themselves against us.”

A little over seven months later, 25-year-old Colonel Henry Knox incredibly moved 59 cannons from Fort Ticonderoga over 200 miles across Vermont, New York and New Hampshire to Massachusetts. The cannons were put on a high hill overlooking Boston’s Harbor – Dorchester Heights. This forced British ships to evacuate Boston.

During the Revolution, Vermont not only fought the British but also New York, resulting in Vermont becoming its own independent nation for 14 years, similar to Texas. The people of VERMONT wrote in their original Constitution, 1777:

“Whereas, all government ought to … enable the individuals who compose it, to enjoy their natural rights, and the other blessings which the Author of Existence has bestowed upon man;

and whenever those great ends of government are not obtained, the people have a right, by common consent, to change it, and take such measures as to them may appear necessary to promote their safety and happiness …

And whereas … the King of Great Britain … continues to carry on, with unabated vengeance, a most cruel and unjust war against them; employing therein, not only the troops of Great Britain, but foreign mercenaries, savages and slaves,

for the avowed purpose of reducing them to a total and abject submission to the despotic domination of the British parliament, with many other acts of tyranny …

Therefore, it is absolutely necessary, for the welfare and safety of the inhabitants of this State, that it should be, henceforth, a free and independent State …

We the representatives of the freemen of Vermont … confessing the goodness of the Great Governor of the Universe, (who alone, knows to what degree of earthly happiness, mankind may attain, by perfecting the arts of government,)

in permitting the people of this State … to form for themselves, such just rules as they shall think best for governing their future society.”

VERMONT’s 1786 Constitution stated:

“That the people have a right to freedom of speech, and of writing and publishing their sentiments; therefore, the freedom of the press ought not be restrained.

That the people have a right to bear arms for the defense of themselves and the State;

and, as standing armies, in the time of peace, are dangerous to liberty, they ought not to be kept up …

And each member, before he takes his seat, shall make and subscribe the following declaration, viz.

‘I ____ do believe in one God, the Creator and Governor of the Universe, the Rewarder of the good and Punisher of the wicked. And I do acknowledge the Scriptures of the Old and New Testament to be given by Divine inspiration, and own and profess the Protestant religion.’

VERMONT’s 1790 Constitution stated:

“All persons have a natural and unalienable right, to worship Almighty God, according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God…

No authority can, or ought to be vested in, or assumed by, any power whatever, that shall in any case interfere with, or in any manner control the rights of conscience …

Nevertheless, every sect or denomination of Christians ought to observe the Sabbath or Lord’s Day, and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed Will of God.”

The United States Government accepted Vermont as the 14th State of the United States in 1791, being approved by President George Washington. Denominations grew in numbers, most notably Congregationalists, Episcopalians and Baptists, followed by Methodists, Presbyterians, Free Will Baptists and Quakers. In the early 1800’s, there were also Unitarians, Universalists, and unconventional sects, such as Millerites and Perfectionists.

Beginning in 1820 with the Second Great Awakening, revivalism swept Vermont and academies with religious affiliations were founded. The anti-slavery sentiment was strong in Vermont. In the 1840’s the Catholic Church increased with French Canadians and Irish immigrants. In the late 1800’s, Judaism, Welsh Presbyterianism, Swedish Lutheranism and Greek Orthodoxy made a presence in Vermont. In 2006, the Pew Religious Landscape Survey listed VERMONT as:

-11 percent Evangelical Protestant
-23 percent Mainline Protestant
-0.5 percent Black Protestant
-29 percent Catholic
<0.5 percent Orthodox
<0.5 percent Other Christian
1.0 percent Mormon
<0.5 percent Jehovah’s Witnesses
1.0 percent Jewish
<0.5 percent Muslim
1.0 percent Buddhist
<0.5 percent Hindu
<0.5 percent Other World Religions
7 percent Other Faiths
26 percent Unaffiliated
<0.5 percent No Answer

The State of Vermont put a statue of Ethan Allen in the U.S. Capitol’s Statuary Hall. On January 9, 1872, Senator Henry Bowen Anthony gave a speech in the U.S. Capital’s Statuary Hall (Washington: F & J. Rives & Geo. A. Bailey, 1872):

“My colleague has well said that it was a happy idea to convert the old Hall of the House of Representatives into the Pantheon of America.

The idea originated with my distinguished friend who sits upon my right, (Senator Justin Smith Morrill of VERMONT,) then a leading member of the House …

It was indeed a happy idea to assemble in the Capitol the silent effigies of the men who have made the annals of the nation illustrious …

I anticipate … every State shall have sent her contribution … of heroes and patriots …

Vermont shall send us the stalwart form of that hero (Ethan Allen) who thundered at the gates of Ticonderoga ‘in the name of the Continental Congress and the Great Jehovah!”

Excerpt reprinted with permission from: The American Minute with Bill Federer, “How America was Almost New France? Jacques Cartier, Champlain, Fort Ticonderoga, Vermont, Ethan Allen” https://myemail.constantcontact.com/How-America-was-almost-NEW-FRANCE–Jacques-Cartier–Champlain–Fort-Ticonderoga–Vermont–Ethan-Allen.html?soid=1108762609255&aid=ct2wE5T0eKc

William J. Federer is a nationally known speaker and best-selling author of many books including “America’s God and Country Encyclopedia of Quotations” which has sold over a half-million copies. He is president of Amerisearch.net, a publishing company dedicated to researching America’s Christian heritage. Bill’s American Minute radio feature is broadcast daily across America and via Internet. His Faith in History television program airs on the TCT Network on stations across America and via DIRECTV. A former U.S. Congressional Candidate, Bill has appeared on CSPAN, FOXNews, MSNBC, ABC, FamilyNet, The Eric Metaxas Show, Starnes Country on FOX Nation, Coral Ridge Hour among many others; numerous television documentaries, and radio programs.

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Guest Essayist: Tony Williams

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Ratified in 1781, the Articles of Confederation had significant problems. The Congress was unicameral, and the national government did not have an independent executive or judiciary. The states were sovereign, and the national government did not have the power to tax or regulate commerce. It was essentially just a league of friendship.

Yet, the national government under the Articles did achieve some notable successes. The nation made peace with the British in 1783 and secured its independence. Moreover, the Confederation Congress established policies for the settlement of land in the West and principles for the integration of new states into the national Union, weak though it was.

Several states had claims to western lands from royal land grants as British colonies and relinquished those claims. As a result, the Confederation Congress was able to formalize the process by which territory could become states once enough Americans populated the area.

Congress passed the 1784 Ordinance written by congressman Thomas Jefferson. It would have made ten states out of the Northwest Territory, and each territory was eligible for statehood when its population reached 200,000. More importantly, it laid down important principles for the addition of new states to the Union. First, the new states would be admitted as equals to the original thirteen states. Second, the residents of the new states were also guaranteed republican self-government. Significantly, Jefferson proposed to ban slavery in all western territories, but it failed by a single vote.

The Land Ordinance of 1785 authorized the survey of the Northwest Territory and the land was to be sold at a dollar an acre to encourage settlement and raise revenue for the national government.

The Northwest Ordinance of 1787 was passed by the Confederation Congress while the Constitutional Convention was meeting. It authorized three to five states in the territory and set up a specific path to statehood in which 5,000 settlers could elect an assembly and 60,000 residents could adopt a constitution and apply for statehood.

The principles of state equality in the national Union and the guarantee of republican governments were prominent again. The purpose was “for extending the fundamental principles of civil and religious liberty, which form the basis whereon these republics, their laws and constitutions, are erected.”

In addition, the Northwest Ordinance protected the rights of the accused including the right to a trial by jury. Freedom of religion was protected, and education to promote civic virtue was key to republican government. “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Slavery was banned in the territory as the framers of this document tried to restrict it to the South and put it on the road to ultimate extinction. Primogeniture was banned and equality in the distribution of property instituted to prevent an aristocracy from arising on American soil. The Northwest Ordinance was strongly bent toward fundamental liberties, republican government, and national Union.

The Constitution restated these principles yet again in Article IV, section 3 when it asserted that new states may be admitted into the Union and that Congress “shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States. In section 4, “The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion.” The Constitution added the principle of federalism to the relationship of the national government to the states.

Rapid westward expansion over the next century built a continental republic rooted in a national Union of equal republican states. However, the expansion was marred by the expansion of slavery and contention about the constitutional authority of Congress to regulate territories as in the Dred Scott (1857) case.

In his Farewell Address, President George Washington expressed the importance of national Union:

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.

President Abraham Lincoln concurred with Washington that the national Union and the republican principle were core ideas of the American Creed: “Fourscore and seven years ago our fathers brought forth, on this continent, a new nation, conceived in liberty, and dedicated to the proposition that all men are created equal.”

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

 

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Guest Essayist: NorthCarolinaHistory.org

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Aside from the federal Constitution, North Carolina has had three state constitutions since separation from Great Britain. One in 1776, one in 1868, and one in 1971.

Although different, the North Carolina constitutions have similar passages, and it is evident how elements of the 1776 constitution were incorporated into the 1868 constitution and how many parts of the 1868 constitution were incorporated into the 1971 constitution. Each version has a Declaration of Rights, albeit the number of declarations is different. All three, however, include a reminder that the study of history can affect current policy: “a frequent recurrence to fundamental principles is absolutely necessary to preserve the blessings of liberty.”

The 1971 State Constitution of North Carolina is the governing document of Tar Heels.

During the past several presidential elections, North Carolina has been described as a “purple” or battleground state. As more people move to The Old North State for work or retirement, pundits are often unsure if the state will lean to the left or to the right in an upcoming election.

North Carolina has been a battleground state and a determining factor in national debates many times. The 1787-89 debates over ratifying the federal Constitution offer an example of North Carolina’s longstanding role in our country’s political history.

During the debates, the state’s population was divided over the necessity of a U.S. Constitution and what became known as the Bill of Rights. North Carolina refused to ratify the constitution without the promise of a Bill of Rights, fearing that a federal government would become too powerful without it. The Bill of Rights would protect citizens’ individual liberties from government.

After the framers drafted the constitution at the 1787 Philadelphia Convention, the document was submitted to respective state ratification conventions for approval. In order for the new union to be formed, nine states had to ratify the Constitution. Nine states did so and, soon after, two more gave approval, for a total of 11. North Carolina was not one of these states. North Carolina became one of only two states to hold out on ratifying the constitution and joining the union.

In North Carolina, there was much debate between the Federalists and the Anti-Federalists over whether or not the state should ratify the constitution. James Iredell, using the pseudonym Marcus, explained the Constitution’s meaning and pointed out the necessity of its adoption. Tar Heel Federalists, such as Iredell and William Davie, believed the “general government” needed more “energy,” such as more authority to tax and be able to have an army to defend the fledgling nation.

A strong Anti-Federalist sentiment, however, remained in North Carolina. Many from the Tar Heel state remembered the Parliamentary abuses before the Revolutionary War and questioned giving more authority to what would become the federal government. Anti-Federalists, Willie Jones and Judge Samuel Spencer, questioned handing any more power over from the individuals and the states to the general government.

Unlike other states, there were two state ratification conventions in North Carolina. One was in Hillsborough (1788) and the other in Fayetteville (1789). Many historians consider North Carolina’s ratification convention minutes to be the most revealing and balanced regarding the debate between Federalists and Anti-Federalists.

In most states, Federalists paid for transcribers, and many times convention minutes give the impression of erudite Federalists engaging Anti-Federalist ignorance; the Hillsborough minutes instead reveal a sophisticated exchange among delegates with opposing beliefs.The Hillsborough Convention offered opportunities for leading Federalists and Anti-Federalists to put forth their arguments.

Iredell, a key federalist who had gained widespread respect during the American Revolution for challenging William Blackstone’s ideas regarding parliamentary sovereignty, had been declaring the necessity of the document. He showcased great oratorical skill and answered many Anti-federal questions concerning the nature of the Constitution and the threat it made regarding individual liberty. He championed the document as a protector of rights because it incorporated rights into the document by limiting the central government’s power.

Willie Jones led the Anti-Federalists; however, Samuel Spencer became their spokesman. Anti-Federalists distrusted the central government and believed states’ rights best protected individual liberties. After debating for 11 days, it became clear the Constitution would not be ratified in North Carolina until a Bill of Rights was added. By a vote of 184 to 83, North Carolina decided not to ratify or reject the Constitution and provided a list of rights and suggested amendments for Americans. Many call the Hillsborough Convention “the great refusal.”

In subsequent months, George Washington had been elected President of the United States and debate continued not only in North Carolina but also in other states regarding the necessity of the Bill of Rights. After being assured that a declaration of rights would be added to the Constitution, in November 1789 North Carolina ratified the Constitution by a vote of 195 to 77 at the Fayetteville Convention. The Old North State finally had joined the new union.

North Carolina’s prominent influence over the Bill of Rights and structure of our Constitution is highlighted in Howard Chandler Christy’s famous painting of the assembly at Independence Hall in Philadelphia. The painting is on a 20 x 30 foot canvas. Washington is the commanding figure, standing on the platform, behind the desk. Benjamin Franklin is a prominent figure, too, although sitting down. Alexander Hamilton is depicted, leaning forward as Franklin lends an ear to the junior statesman’s opinion — something Hamilton was willing to share to whomever may listen. The South Carolina delegation, including Charles Pinckney and John Rutledge, are also prominent while standing at the back of Independence Hall, with outstretched arms, indicating they are ready to be the next to sign the document.

So, who is signing the document in that massive portrait that now hangs in the east stairway of the Capitol building? Well, it is North Carolinian Richard Dobbs Spaight. Standing behind him is another Tar Heel, William Blount. The last member of the North Carolina delegation to sign the Constitution is stepping up on the platform — Hugh Williamson.

Often overlooked in histories regarding the founding, the North Carolina delegation is front and center in Christy’s portrait, showing the Old North State’s vital role in the framework of our nation’s Constitution. North Carolina’s heated political debate and strong dissent contributed significantly to ensuring that Americans would have a Bill of Rights.

Information courtesy of www.northcarolinahistory.org, a project of the John Locke Foundation, and Anna Manning of the John Locke Foundation

Anna Manning serves as Marketing and Operations Specialist at the John Locke Foundation. She works with the Vice President of Operations and Vice President of Marketing and Communications to facilitate day to day operations and develop strategic marketing plans for social media and fundraising. Previously, she worked as a legal research intern for the John Locke Foundation. Prior to that, Anna interned in Governor McCrory’s Department of Administration with the North Carolina Commission on Volunteerism and Community Service. Anna has a Bachelor of Arts in Political Science from North Carolina State University and is currently working on a Master of Public Administration from UNC Chapel Hill. In her free time, Anna likes to travel, hunt, and hang out with her dog.

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Guest Essayist: Kyle A. Scott

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Last of the thirteen original states to ratify the U.S. Constitution, Rhode Island was admitted to the Union May 29, 1790. The Rhode Island State Constitution in current use was adopted in 1986.

Rhode Island is known to school children outside of the Ocean State only for its size. One should not be deceived by its diminutive size and think it inconsequential in the nation’s history. Space does not permit a complete history of the state, but an overview of its involvement during the ratification of the U.S. Constitution is enough to justify it as being a power player in our nation’s politics.

Around 1781 Rhode Island began carrying the moniker of “Rogue Island” for its opposition to commonly accepted measures in the Second Continental Congress. Under the Articles of Confederation unanimity of the former colonies was required for the Confederation to take action. Rhode Island was known for casting the lone dissenting vote in many circumstances that prevented action from being taken.

Although, as the first colony to renounce allegiance to King George III on May 4, 1776—two months before the Declaration of Independence was adopted by the Continental Congress—the other former colonies should not have been surprised that a state willing to lead the way in throwing off the yoke of its colonial oppressors would be willing to go against popular sentiment during and after the fight for independence.

The rebellious streak was put on full display as it once again lived up to its moniker as Rogue Island when it was the only state to boycott the Philadelphia Convention in the summer of 1787. The product of that convention was the U.S. Constitution that still governs us today. Rhode Island was so opposed to overturning the Articles of Confederation, or any move that may threaten state sovereignty, that it simply refused to take part. However, Rhode Island had—at least somewhat—overvalued its importance to the process.

Article VII of the U.S. Constitution stipulates that only 9 out of 13 states were required for ratification. On June 21, 1788 New Hampshire became the ninth state to ratify thus putting the new constitution into effect. However, three of the largest and most powerful states—Virginia, New York and North Carolina—had not yet ratified which meant the nation was still not solidified. But with Virginia ratifying on June 25 and New York on July 26 of 1788, the first Congress convened on March 4, 1789 nearly seven months before North Carolina ratified and more than a year before tiny Rhode Island would be the final state to ratify. Once a Bill of Rights was proposed it would not be long before North Carolina would agree to enter the Union as its primary opposition was based on a lack of clearly defined rights in the Constitution. Rhode Island, on the other hand, had a broad base of opposition.

Rhode Island was not motivated by a single group or ideology. It wanted guarantees that it would have control over its own monetary policy. It had pursued inflationary policy during and after the war that entailed printing money to pay off its war debts. It feared that under a national structure its currency would be devalued and the state would be saddled with excessive war debts thus hobbling its economic and social well-being.

The fear of losing control over its monetary policy was consistent with its general concern for the growth of national power. Furthermore, the large Quaker population was appalled by the allowance of the importation of slaves within the new Constitution, even if it was for a limited time.

Eventually, however, the commercial interests of the state won out when the Senate passed a bill prohibiting trade between the member states of the Union and Rhode Island. The mercantilists in Providence and Newport were able to sustain a winning coalition in May of 1790 to ratify the constitution by a narrow margin of 34-32. This was its twelfth attempt at ratification with the first attempt losing soundly by a vote of 10-1.

By the time Rhode Island had ratified, the Bill of Rights had already been voted out of Congress and sent to the states for ratification with nine states ratifying before Rhode Island was seated in the House of Representatives. Therefore, Rhode Island’s lists of eighteen human rights and twenty-one suggested amendments cannot be said to have had a profound effect over our understanding of the original Bill of Rights even though it was not until the eleventh state, Virginia, on December 15, 1791, ratified that the Bill of Rights became part of the Constitution.

What the history of Rhode Island reminds us is that the states that formed the Union understood themselves to be acting on behalf of their citizens and the state government. It was thirteen individual states who formed the Union and not the people of those states. The Union did not transform the people into a single-collective, but rather the people were citizens of their states and the states acted on behalf of their citizens at the national forum. This may seem radical in light of how most people view themselves today, but at the time they would have thought our modern construction as radical and a severe departure from the Spirit of 1776 that rebelled against a distant, centralized governing body that limited self-rule. The Spirit of 1776 also saw the former colonies declaring themselves independent individually rather than as a collective. The actions of the colonies preceded the collective Declaration of Independence. A righteous act of independence had begun with Rhode Island and the nation solidified only when it became the last of the original thirteen to join the union.

Kyle Scott, PhD, MBA serves on the Board of Trustees for the Lone Star College System and teaches political science at the University of Houston and is an affiliated scholar with the Baylor College of Medicine’s Center for Health Policy and Medical Ethics. Kyle has authored over 70 op-eds, dozens of academic articles and five books, the most recent of which is The Limits of Politics: Making the Case for Literature in Political Analysis. He can be reached at kyle.a.scott@hotmail.com or on Twitter: @kanthonyscott 

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Guest Essayist: Daniel A. Cotter

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New York – July 26, 1788

Eleventh of the thirteen original states to ratify the U.S. Constitution, New York was admitted to the Union July 26, 1788, one month and a day after Virginia became the 10th state and is known as “The Empire State” (apparently based on its wealth and resources).  The current New York State Constitution was adopted in 1894, but its first was adopted on April 20, 1777.

Constitutional Convention

New York sent only three delegates to the Constitutional Convention in Philadelphia- Alexander Hamilton, John Lansing, Jr., and Robert Yates.  Only Hamilton signed the Constitution in September 1787.  Like Virginia, New York was a large, well populated, wealth state, and was important to the future of the nation.  At the time, New York was the fifth largest state by population but already an immensely important commercial participant.  After extended debate, New York ratified by a slim three vote margin, 30-27, becoming the 11th state admitted to the Union.  Upon ratification, New York sent a long, detailed ratification message, with a declaration of rights and suggested changes and modifications to the Constitution, but with approval based on an understanding “that the amendments which shall have been proposed to the said Constitution will receive an early and mature consideration.”   At the New York Convention, the Anti-Federalists were led by Governor George Clinton, and the Federalists by Hamilton.  Anti-Federalists wanted a Bill of Rights and wanted states to prevail over federal encroachments feared by the new Constitution.  When the New York Convention convened, Anti-Federalists had an overwhelming majority.

The New York Convention convened in mid-June 1788, and began debating, with a close eye on developments in Virginia.  If Virginia had rejected the U.S. Constitution, New York might have done the same.  Hamilton asked Madison to send message to New York informing the Empire State of the vote in Virginia. That dispatch arrived in Poughkeepsie, New York on July 2, 1788  That letter turned the two-thirds Anti-Federalist convention into a narrow margin of ratification, with the request and recommendation that a number of amendments be made to the Constitution.  New York made such amendment recommendations similar to those of Virginia.  In an unusual move, the New York Convention sent a circular letter to the states that called for a  second general convention to consider such amendments.

John Jay, who wrote a handful of The Federalist Papers, but would have written more except for his illness, was influential at the New York Convention. While he did not attend the Constitutional Convention, Jay would become an important national leader of the infant nation, appointed by President George Washington in 1789 as the first Chief Justice of the Supreme Court of the United States.  He would not remain in that position long, returning to New York to become Governor.  Jay also helped to negotiate peace with England and, in 1794, was appointed special envoy to seek peace with Great Britain.  Jay’s Treaty, as it became known, brought temporary peace.

The New York Constitution

Immediately following the Declaration of Independence, a Convention assembled in White Plains, New York on July 10, 1776.  Due to the Revolutionary War and George Washington and the Continental Army’s crushing defeats in New York and New Jersey, the convention adjourned and reconvened over the next nine months, culminating in its adoption on April 20, 1777. The primary drafters of this original New York Constitution were John Jay, Robert Livingston , and Gouverneur Morris.   The new constitution had a bicameral legislature and a strong executive branch.

In New York, slavery was permitted and legal until 1827.  The New York Constitution has had several constitutional conventions, with the current New York Constitution having been ratified at the New York state election in 1894 in three parts.  While nine Constitutional Conventions have been held in New York State, the state has had only four de novo constitutions- 1777, 1821, 1846, and 1894.

Conclusion

Like the 10th state, Virginia, while New York’s ratification was not required under the new Constitution for there to be a United States, had the vote gone the other way, the United States may have been for naught before they began.  The Empire State showed its wealth of wisdom in ratifying the United States and becoming the 11th state in a fledgling nation.  Had New York insisted on its voluminous amendments to the draft U.S. Constitution or that a Bill of Rights be passed with any ratification, and four votes had gone the other way, we might well have never moved to fifty states. Thankfully, we will never know.  But New York was extremely influential in the Bill of Rights being considered, including the powerful 10th Amendment, which provides: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”  With the 9th Amendment, the intent was to limit the powers of the federal government.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. 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.

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Guest Essayist: Steve Armstrong

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Connecticut is called the “Constitution State”, largely because of the Fundamental Orders, which were written by the Connecticut Colony Council in 1639.  Some have argued that this is the first constitution (a few historians say in the entire world) that empowers the citizens of a state to govern themselves.  Where other American colonies in the 1600s and early 1700s were largely governed by representatives from Great Britain, citizens of Connecticut practiced a form of self-government.  The Fundamental Orders also outlined individual rights that were given to all Connecticut citizens.

Other historians maintain that the purpose of the Fundamental Orders was merely to improve on models of government that had been developed in other colonies, including Massachusetts.  The Fundamental Orders limited the power of the Governor and statewide magistrates, and somewhat expanded the right of males to vote.  These historians argue that the Fundamental Orders are very different from an actual governing document.

King Charles II issued an official charter to Connecticut in 1662.  This charter did not have a major impact on political actions in Connecticut.  Charles’s successor, James II, wanted to control all of New England and in 1687 sent representatives to Connecticut to gain more political influence over the colony.  The King’s representatives demanded that government officials return the charter issued by Charles II.  According to rumor, the charter was hidden in an oak tree so that it could not be retrieved.

Government in Connecticut was relatively stable from the seventeenth through the early nineteenth century.  Governors and other leaders came from the same set of elite families called the “Standing Order.”  Governors were re-elected, oftentimes more than once.  In addition, the Congregational Church was the “official” church of Connecticut. Any new town had to have a Congregational church and a minister; Connecticut citizens also had to pay taxes to support the operations of the Congregational Church.  A General Assembly existed, but the Standing Order held the real social and political power in Connecticut.  In the first years of the new nation, almost all members of the Standing Order were members of the Federalist Party.

In the first years of the nineteenth century, a level of political and social discontent developed in Connecticut.  Non-Congregationalists were increasingly upset by the “official” position of the Congregational Church in Connecticut.  Farmers were being pressured by high taxes and several years of poor harvests.  The Republican Party of Thomas Jefferson began to gain popularity in the state; by 1807, roughly 1/3 of the members of the lower house of the General Assembly were Republicans.  Federalists opposed the War of 1812 (at the Hartford Convention of 1812-1813, New England Federalists came together to discuss their opposition to the war and to discuss appropriate measures to oppose the war; Federalists were accused of being traitors as the war became more popular after Andrew Jackson’s victory at the Battle of New Orleans).

A new political party developed in Connecticut called the Toleration Party. The major goals of the party were to unite all of those opposed to the status quo political, religious and social structure in Connecticut and especially to reduce the importance of the Congregational Church in the state.  In 1816, the Toleration Party won control of the lower house of the general assembly and in 1817 a member of the party, Oliver Wolcott, son of a former Standing Order governor, was elected to the same position.  Both the assembly and Governor Wolcott called for a constitutional convention which took place in 1818.

The new Connecticut constitution, eventually ratified by Connecticut citizens by a narrow margin, outlined in detail the rights that all Connecticut citizens should have.  The constitution created a system of almost universal white male suffrage.  It created a system of three branches of government with an independent judiciary (previously decisions of Connecticut’s Supreme Court could be appealed to the General Assembly).  Most importantly, the Congregational church ceased to be the official “state” church of Connecticut. All citizens of the state were given the right to practice the religion of the their choice, and no more tax dollars would go to support the Congregational Church.  According to Connecticut State Historian Walter Woodward, the real victors of the constitutional changes were the Connecticut citizens tired of the lock on political power held by the Standing Order.

Many of the provisions of the 1818 Constitution lasted through the 20st century.  However, one issue that gained attention was representation in the lower house of the Connecticut assembly.  Each Connecticut town or city had equal representative in this body. Connecticut’s major cities had the same number of representatives as the smallest towns in the state.  A constitutional convention was held in 1902 to reapportion representation in the General Assembly; the voters of the state rejected the proposal on reapportionment made by that body.

The same issue became more acute in the mid-1960s when federal courts ruled that representation in the lower house of the Connecticut General Assembly (and in other states as well) violated “one man one vote” decisions handed down by the United States Supreme Court.  Federal courts mandated that Connecticut was going have to reapportion its system of representation.  A constitutional convention was convened in 1965, with 42 Republican and 42 Democratic delegates.

The constitutional convention reapportioned membership in both the Connecticut Senate and House of Representatives. The previous system giving each town and city equal representation was completely abandoned.  The new constitution gave Connecticut voters the opportunity to call for a constitutional convention every twenty years. Mandatory party-lever voting was also stopped.  Connecticut voters approved the 1965 constitutional changes by a large margin.

Connecticut has been able to avoid the violent upheavals that have accompanied political changes in other states and regions. Major conferences were held and articles were written in Connecticut last year on the reasons for and results of the Constitution of 1818.  Connecticut is often called the “Land of Steady Habits,” and the system of local control established by the Fundamental Orders of 1639 as still a fundamental feature of the belief-system in Connecticut today.

Stephen Armstrong serves as the Connecticut Board of Education’s Social Studies Consultant and an adjunct instructor in the history department at Central Connecticut State University. Prior service includes that of social studies department supervisor in the West Hartford, Connecticut public schools; past president of the National Council for the Social Studies; and past president of the Connecticut Council for the Social Studies, the Connecticut Committee for the Promotion of History, and the New England History Teachers Association. A resident of  lives in South Windsor, Connecticut, Armstrong has presented workshops on the use of popular music in the social studies classroom and led numerous travel trips for teachers and students. He has presented workshops at the Rock and Roll Hall of Fame and Bethel Woods Museum for the Arts located on the site of the original Woodstock Music Festival.   

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Guest Essayist: Tony Williams

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On May 15, 1776, the fifth Virginia Convention told its delegates to the Continental Congress in Philadelphia to “be instructed to propose to that respectable body to declare the United Colonies free and independent states, absolved from all allegiance to, or dependence upon, the crown or parliament of Great Britain.”

On the same day, the Congress adopted recommended to the assemblies and popular conventions in the colonies 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.”

John Adams called this measure “independence itself.” Adams added a radical preamble for self-government that “every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted under the authority of the people of the colonies.”

The Virginia Convention followed Congress’ exhortation to adopt a new constitution and appointed a committee to draft it, and a Declaration of Rights. The constitution was the framework of government. The declaration was, in the words of Edmund Randolph, “In all the revolutions of time, of human opinion, and of government, a perpetual standard…around which the people might rally and by a notorious record be forever admonished to be watchful, firm, and virtuous.”

The convention adopted the Virginia Declaration of Rights on June 13. George Mason was its primary draftsman. He began with a stunning assertion of natural rights.

“That all men are by nature equally free and independent and have certain inherent rights, of which…they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”

The declaration was deeply influenced by the thinking of John Locke. It stated that “all power was vested in” the sovereign people, and the representative government was established to protect their rights. When it became destructive of these ends, the majority had the “indubitable, inalienable, and indefeasible” right to alter or abolish it. Its influence on the Declaration of Independence was unmistakable.

The declaration included several core principles fundamental to the American experiment in liberty: free elections, separation of powers, trial by jury, rights of the accused. The freedom of the press was called “one of the greatest bulwarks of liberty, and can never be restrained but by despotic governments.” Finally, the declaration protected freedom of conscience as a natural right. “All men are equally entitled to the free exercise of religion, according to the dictates of conscience,” it asserted.

In Philadelphia, Thomas Jefferson was busy with the work of drafting the Declaration of Independence and regretted not being part of the Virginia Convention. He drafted a constitution for the convention, but submitted it too late for it to be considered by the delegates.

On June 29, the convention adopted a constitution guided by revolutionary principles. The different branches of government were separated and consisted of a bicameral General Assembly, an executive, and judiciary. The House of Delegates was the most representative of the people and were elected annually. The two houses of the legislature voted for the governor and curtailed the power of the executive who was elected annually and could not serve more than three terms consecutively. The principles of 1776 and great suspicion of executive power because of the experience under the king and his royal governors underpinned the weakening of executive power.

The Virginia Constitution was one of the first modern constitutions and represented the republican and revolutionary principles of 1776. The state constitutions created republican governments and helped shape the experiences and principles that led to the Constitutional Convention in 1787.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

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On June 25, 1788, “Old Dominion” as Virginia is known, became the tenth of the thirteen original states to ratify the U.S. Constitution, admitting it to the Union June 25, 1788. The Virginia State Constitution in current use was adopted in 1971, with the original Virginia Constitution adopted in 1776.  Despite the U.S. Constitution requiring that only 9 of the 13 colonies ratify it for it to become effective, given the importance of Virginia to the new nation, had it voted down the U.S. Constitution, the future of the United States might well be in doubt.

The nickname, “Old Dominion,” likely derives from Virginia being the first of the overseas dominions of the kings and queens of England.  Virginia also is known as the Mother of Presidents and the Mother of States.  Eight Virginia natives have held the presidency, including four of the first five- George Washington, Thomas Jefferson, James Madison, and James Monroe.

On the third day of the fall session of the Virginia legislature in 1787, the Virginia House approved a convention to consider ratification of the proposed United States Constitution.  The Virginia legislature strongly debated whether to adopt or reject the document as it was submitted, or to condition any approval upon certain amendments and revisions.  John Marshall proposed a resolution that won the day, “that a Convention should be called and that the new Constitution should be laid before them for their free and ample discussion.”  The Senate followed slowly, and on January 8, 1788, a law passed calling for a state convention.

The Virginia Convention of 1788 commenced on June 2, 1788.  The delegates arriving in Richmond believed that the fate of the Constitution hung in the balance with how Virginia decided.  Even so, upon arrival at the Convention, many members had not seen the Constitution until they arrived at the Virginia Convention.  While the Virginia convention ensued, New Hampshire became the ninth state to ratify the Constitution and it became effective.  At the time of the Virginia Convention, a healthy majority of Virginians were opposed to the concept of a strong national government contemplated by the Constitution and the Virginia Convention began with that view prevalent amongst the delegates.  The Nation was watching closely how the important Commonwealth of Virginia decided, for “she also was the most important State in the Confederation in population and, at that time, in resources.”

Delegates included a veritable “who’s who” of delegates, including John Marshall, along with Governor Edmund Randolph, James Madison, George Mason, James Monroe, and Patrick Henry. On June 24, 1788, Delegate George Wythe moved the Virginia Convention to ratify the Constitution.  Henry arose for a final great speech of his life, arguing against ratification without amendments. The proposal to add amendments, many of which became the Bill of Rights, failed to be a condition of ratification, but would prove to be valuable guidance when Congress met in 1789. After further debate, on June 26, 1788, the Virginia Convention voted to ratify the Constitution by the slim margin of 89-79.  This slim margin would not have been possible had eight members of the Convention not voted against their constituents’ directives, and two ignored the instructions given them.  Virginia effectively would be the only convention where both sides of the debate were fully vetted and discussed.  The Virginia delegation argued both broad principles and minor details of the document approved in Philadelphia.

With that, the new nation could breathe easy, as its largest colony and most influential was on board.  As noted, it would see four of the first five presidents hail from Virginia.

The Virginia Constitution

Before the Declaration of Independence was made, Virginia adopted its state Constitution on June 29, 1776, and its document would be of major impact when the new nation turned to creating a Constitution of its own.  Mason, who had a large role in the drafting of the Constitution in Philadelphia, and who was one of three delegates still in Philadelphia in September who did not sign the Constitution, was one of the main drafters of  the 1776 Virginia Constitution.  The other was Madison, who is considered by many to be the Father of the Constitution for his work in connection with the Annapolis Convention, the Bill of Rights and the Constitutional Convention.  Madison would take his learnings from Virginia a decade later when he helped design the United States Constitution.

The 1776 Virginia Constitution included a bicameral legislature, the governor was the executive and there was a judicial branch.  In addition, the Virginia Constitution had an accompanying Virginia Declaration of Rights, which Mason mostly wrote, that guaranteed certain human rights and freedoms that would be the model for the Bill of Rights introduced at the first Congress of the new nation under the ratified United States Constitution.

Conclusion

While the ratification of Virginia was not required under the new Constitution for there to be a United States, had the vote gone the other way, the United States may have been for naught before they began.  Old Dominion showed its leadership and ratified the U.S. Constitution and the rest is history.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. 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.

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Guest Essayist: The Honorable Bill O’Brien

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New Hampshire has a glorious history of national firsts.

While the Sons of Liberty gathered around a tree in Boston before the Revolution, the glory of New Hampshire was that in 1772 we had the Pine Tree Riot.  Three years before Paul Revere’s midnight ride, the Pine Tree Rioters in Hillsborough County rebelled against paying the British King’s taxes on trees.  Then the rioters’ neighbors added insult to royal injury by refusing the governor’s order to come out as a militia and quell the rioters who had taken to tarring and feathering the king’s agents.

In a similar fashion, before the Minutemen fought the British redcoats in Concord and Lexington in the Spring of 1775, the King’s army was subject to ongoing harassment and attack in New Hampshire.  As early as 1757, the early day contributors to New Hampshire’s continuing libertarian tendencies opposed British troop recruitment in the town of Brentwood.

This tension grew over the years before the Revolution and finally led to what should be recognized as the first armed conflict of the Revolution.  On December 14, 1774 the indefatigable Paul Revere brought alarming news north from Boston that the King’s government was sending troops and was going to forbid the import of arms into America.  In response, that afternoon 350 New Hampshire men attacked the royal fort of William and Mary in New Castle on the coast near Portsmouth.

Under fire from the troops defending the fort, these New Hampshire patriots captured the fort and its garrison, took down the British colors, seized most of the gunpowder and departed.  When the royal governor the next day regarrisoned the fort and ordered the return of the gunpowder, the insurgents went back to Fort William and Mary and took the remaining gunpowder, plus 16 cannons and all the muskets.

But it was not only in pre-revolutionary rebellious behavior that New Hampshire set a national example.  It has also come to lead the nation in many important aspects of state governance.

In 1916, clean-government New Hampshire set an example for the other states by establishing a presidential delegate selection primary over backroom choice of national convention delegates. This delegate selection primary turned into a direct presidential candidate selection primary in 1952, a move that has caused many states to now have their own primaries and voter caucuses.  New Hampshire’s reform has led other states to replace their own backroom deals for choosing presidents in favor of a transparent process relying on voter selection.

While this electoral reform has extended across our country, New Hampshire’s primary remains an important quadrennial feature of presidential politics.  In every presidential election cycle, for now almost 70 years, New Hampshire has ensured that its initial presidential primary remains the First-in-the-Nation Presidential Primary.  As a result, while some states might be known for making such things as ethanol for our cars and bacon for our breakfasts, “New Hampshire makes presidents.”[1]

New Hampshire has many other firsts of national distinction and many of those include what it has brought to the development of constitutional law in America.  It could not be other for the first of the American colonies to declare its independence and have the first state constitution.

On January 5, 1776, the then provincial Congress of New Hampshire recognized that with the royal governor and British troops having been chased out of the state, the time had come to adopt a state constitution derived not from royal prerogative or British parliamentary grant, but rather from the free suffrage of the people.[2]  In doing so and by means of that very first constitution, New Hampshire became the first of the 13 original colonies to declare its independence from the Great Britain – six months before the Declaration of Independence was signed.[3]

Perhaps setting the stage for constitutional brevity in the later federal, and some of other state constitutions, this first-in-the-nation state constitution was only two and a half pages long.  Unlike most other state constitutions, however, and perhaps reflecting its origins in a legislative body comprised mostly of the members of a provincial assembly that the royal governor had attempted to discharge for countenancing an attack on the King’s fort and other wrongs, the 1776 New Hampshire constitution established the legislature as the superior branch of government.

Under this “First-in-the-Nation” state constitution a chief executive officer was referenced, but that office titled as “President” was merely the leader of a council chosen by a House of Representatives.  This council, and therefore the President, was not only chosen by the House of Representatives, but together the House and council formed the Legislature.

This 1776 enactment of what came to be a New Hampshire wartime constitution further provided that all other government officials were to be appointed directly or indirectly by the Legislature, except for certain county officials.  Otherwise only the members of the House of Representatives were directly elected by the people.

Thus, under the 1776 New Hampshire constitution, the office of the chief executive was not fundamentally separate from the Legislature.  Most all elements of the state government derived their existence and office holders at the sufferance of the Legislature.  In the first state constitution in America there were no co-equal branches of government.  There was no balance of power.  The Legislature was supreme.[4]

Based on this 1776 grant of state constitutional authority in New Hampshire, Meshech Weare was chosen as the first President of New Hampshire and he served in this capacity until the end of the Revolution.  Further reflecting the judiciary’s junior role in the government,[5] Weare was also appointed to head the state’s highest court, the “Superior Court of Judicature.”  He served there from 1776 to 1782. During that time, the executive branch and the judicial branch in New Hampshire had the same person as their chief officers. Nonetheless, the real power existed in the Legislature.[6]

Following our War of Independence, New Hampshire took up the task of replacing the wartime constitution.  The resulting New Hampshire state constitution was adopted in 1784, five years before the federal constitution.  As amended, this constitution continues as the basic law for the State of New Hampshire today and is second only to Massachusetts in being the state constitution with the longest tenure in the country.

The 1784 New Hampshire Constitution continued to name the Chief Executive as President.[7]  It did, however, make that position a separately elected office.  In doing so, it established the executive administration as a separate branch of state government along with a legislature consisting of a Senate and House of Representatives.

The 1776 council that had been the senate was not lost now that there was a separately designated senate.  Rather, the 1784 Constitution shifted the council from being part of the Legislature to becoming an independent body within the executive branch.  There it was placed to serve as a check on the Chief Executive.  In fact, each of the Chief Executive and the elected, five-member Council could veto the acts of the other.

Thus, the drafters of the 1784 Constitution overcame their pre-revolution distrust of governors, who had been royally appointed, and recognized the necessity of having a chief executive.  Having done so, however, they followed what was the lead of the 1780 Massachusetts constitution and put in place a substantial check on the chief executives’ authority.  The check they developed was so substantial, in fact, that it could deadlock the chief executive.

Similar to this capability of the Chief Executive and the Council to stalemate each other, when establishing the Legislature (the “General Court”), the 1784 Constitution included the same type of checks and balance for the Senate and the House of Representatives each of which is to have a strong veto right over the other.[8] Moreover, the chief executive was given an overridable veto over the Senate and House acting together.  Thus, in a choice that continues to underlie our federal and state constitutions today, the drafters of New Hampshire’s constitution favored liberty over efficiency.

Even as the New Hampshire constitution continues through the third century following its adoption, its essential checks and balances have not been changed.  As a device to avoid executive or legislative tyranny, this approach certainly served as an example for those in other states, and the federal government, who later brought the concept of “checks and balances” to their basic laws.

One noteworthy additional provision in the New Hampshire Constitution is an article that expressly recognizes the right of revolution.[9]  Though, of course, recognition of the existence of a right of revolution is fundamental to the American national experience, [10] although a provision of that nature did not find its way by language or concept into the later federal constitution or, for that matter, many other state constitutions.

Nonetheless, as the New Hampshire drafters of a state constitution adopted shortly after the Revolution understood, the existence of an inalienable right of revolution underlay both the New Hampshire and American declarations of independence.  They no doubt knew that their recognition of its existence was based on ancient examples existing only in faded recollections,[11] and therefore it was important to expressly ensure that as the Revolution faded into distant memory, government did not forget the lessons so painfully taught to the British oppressors.

So, forcefully recognizing this right in the New Hampshire constitution’s bill of rights was almost unique in American constitutional law.  It is one thing, however, to recognize this right as a justification when being a perpetrator of a rebellion and quite another when drafting a fundamental law that is intended to have permanence.  Yet, the drafters of the New Hampshire 1784 Constitution, enacted mere months after the adoption in Congress of the Treaty of Paris, that brought the suffering and horrors of the Revolution to an official end, had the courage to do so.  They wanted it preserved in the State’s memory, that in the face of arbitrary governmental power and oppression, revolution is not just an option, but should be repeated.

Perhaps not with such forceful language, this courage to express the right to further conflict and rebellion was demonstrated not in many, but certainly in some subsequent state constitutional enactments.  Included among those were the constitutions of Kentucky, Pennsylvania, Tennessee, North Carolina and Texas.  Indeed, the North Carolina constitutional language tracked much of what is found on this concept in New Hampshire’s constitution.[12]  This right of revolution has additionally found expression in the Universal Declaration of Human Rights.[13]  While limited in expression elsewhere, the right of revolution is a necessary, inescapable and, in New Hampshire, enshrined human right.

This first constitutional expression in New Hampshire of the logic that all who are oppressed have the right to revolt to regain their liberty has at least continued, if not promoted, the concept of universal freedom.  In this, perhaps as much as its protection of the retail politics enabled by its presidential primary and continuing to point the way to checks and balances of governmental power, New Hampshire has been at the forefront of the states.

New Hampshire has truly been First-in-the-Nation in more ways than one.

Bill O’Brien served for five terms in the New Hampshire House of Representatives where he was Speaker from 2010 to 2012.

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[1] McCaughey, Betsey, Democracy at Its Best (Washington Times, April 24, 2015) (https://www.washingtontimes.com/news/2015/apr/24/betsy-mccaughey-democracy-its-best/; accessed March 17, 2019).

[2] See January 5, 1776 NH Constitution at http://avalon.law.yale.edu/18th_century/nh09.asp (accessed March 15, 2019) (“WE, the members of the Congress of New Hampshire, chosen and appointed by the free suffrages of the people of said colony, and authorized and empowered by them to meet together, and use such means and pursue such measures as we should judge best for the public good; and in particular to establish some form of government, . . .”);  See also New Hampshire General Court, Documents and Records Relating to the State of New Hampshire. pages 36 and 37  (E. A. Jenks, state printer 1874) (accessed March 15, 2019 at https://www.library.unh.edu/find/digital/object/propapers%3A0008).

[3] And months before the first independence declarations claimed for other of the American colonies, in particular North Carolina and Rhode Island.

[4] Thereafter, other states continued with the concept of legislative supremacy over other branches.  See, e.g., 2006 article on North Carolina constitutional history by John V. Orth, accessed on March 17, 2019 at https://www.ncpedia.org/government/nc-constitution-history.

[5] This subservient role of the judiciary continued on in the 1784 constitution until amendments as late as 1966 were intended to make the Judiciary in some respects a co-equal branch of government.  N.H. CONST. pt. 2, art. 72-a (November 16, 1966).

[6] The primacy of the Legislature was often graphically illustrated in the 19th century when the Legislature, having become dissatisfied with the then current state of Judiciary, dissolved the then existing courts and reconstituted others to serve as the judiciary.  See Wines, Michael, Judges Say Throw Out the Map.  Lawmakers Say Throw Out the Judges (NY Times, February 14, 2018) (https://www.nytimes.com/2018/02/14/us/pennsylvania-gerrymandering-courts.html; accessed March 17, 2019) (“As far back as the 1800s, New Hampshire’s legislature disbanded the state’s Supreme Court five times, said Bill Raftery, a senior analyst at the National Center for State Courts in Williamsburg, Va. . . .”).

[7] The title later became “Governor.” N.H. CONST. pt. 2, art. 41(as amended, 1792).

[8]The Supreme Legislative Power, within this State, shall be vested in the Senate and House of Representatives, each of which shall have a negative on the other.” N.H. CONST. pt. I, art. 2 (June 2, 1784).

[9] “… [W]henever the ends of government are perverted, and public liberty manifestly endangered, and all other means of redress are ineffectual, the people may, and of right ought to reform the old, or establish a new government. The doctrine of nonresistance against arbitrary power, and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.” N.H. CONST. pt. I, art. 10 (June 2, 1784).

[10]We hold these truths to be self-evident… –That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government,”  Quoting, The Declaration of Independence (July 4, 1776).

[11] See, e.g., Declaration of Arbroath (April 6, 1320) (“for, as long as but a hundred of us remain alive, never will we on any conditions be brought under English rule. It is in truth not for glory, nor riches, nor honours that we are fighting, but for freedom – for that alone, which no honest man gives up but with life itself”), quoting in part Sallust, The Conspiracy of Catiline (circa 50-35 BC).

[12] See generally, Wikipedia, Right of Revolution, https://en.wikipedia.org/wiki/Right_of_revolution#cite_note-37.

[13]Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by rule of law.” The Universal Declaration of Human Rights, UN General Assembly resolution 217 A (December 10, 1948) (http://www.un.org/en/universal-declaration-human-rights/index.html; accessed March 17, 2019).

Guest Essayist: Charles F. Vaughan

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The eighth state to ratify the U.S. Constitution, South Carolina, was admitted to the United States May 23, 1788. It was also the first state to secede from the Union. The current South Carolina State Constitution was adopted in 1896.

Albemarle Point, located on the Ashley River, was established in 1670 as the first permanent English settlement in South Carolina. It was under the supervision of the eight lords proprietors who had been granted “Carolana” by King Charles II. Ten years later, settlers moved across the river to the present site of Charleston.

From its very beginning, South Carolina had a constitution in the form of the Fundamental Constitutions of Carolina. Although never fully ratified by the colonists and eventually jettisoned in 1698, it did shape political power and land distribution in the colony. Co-authored by John Locke and Lord Anthony Ashley Cooper, 1st Earl of Shaftesbury, it was notable for its religious tolerance, providing right to worship to religious dissenters of Christianity, Jews, and Native Americans. It offered sanctuary for groups seeking refuge from religious persecution in Europe. The constitution promoted slavery and an aristocracy which could wield absolute power over their enslaved Africans. This set the stage for the next 200 years.

South Carolina became a Royal Colony in 1729. The colony experienced very minimal royal control, apart from the appointments of Royal Governors. A period of salutary neglect on the part of the British Crown enabled government to evolve in such a way that served the needs of the lowcountry elite. The House of Commons Assembly and Privy Council were modeled after the English Parliament.

Since the colonial period, South Carolina has had seven constitutions, dating from 1776, 1778, 1790, 1861, 1865, 1868, and 1895. The Constitution of 1776 became necessary after Governor Loyd Campbell fled the colony over tensions between the colonies and England. Approved by the Provincial Congress of South Carolina, the Constitution incorporated previous royal instructions but originated from the people of South Carolina. This plan of government was to last until the disputes with Great Britain could be settled. It established a bicameral legislative branch, the General Assembly, with members of the lower house elected by the people, and members of the upper house elected by the lower house. In place of a governor, there was a president, selected by both houses. The president had veto power and could only serve one term in office. The upper house also elected a vice president and a chief justice. The judicial branch remained unchanged from the colonial system.

There existed an unequal distribution of power in the new government, with the upper house dominated by lowcountry elite even though the majority of the white population resided in the upcountry. Representation in the lower house was shared a little more equally between the lowcountry and upcountry.

The Constitution of 1778 created strict property requirements for the franchise. White men had to possess a significant amount of property to vote, and had to own even more property to be allowed to run for political office. In fact, these property requirements were so high that 90 percent of all white adults were prevented from running for political office. The office of president became the governor, whose election remained purview of the General Assembly. The upper house, renamed the South Carolina Senate, was popularly elected. Representation in the legislature was reapportioned so that the upcountry had forty percent of the seats. In 1786 the General Assembly relocated the capital from Charleston to Columbia as a way to express increased statewide unity. The following year the General Assembly banned the importation of new slaves.

On May 23, 1788, South Carolina ratified the United States Constitution. This necessitated a new constitution. In June 1790, a convention of elected delegates from across the state unanimously ratified the Constitution of 1790, which served the state until 1861. Lowcountry elite continued its dominance of the legislature as seats were apportioned on the basis of wealth. The governor, elected by the General Assembly, had no veto power. Voting was limited to white males who had to meet strict property requirements. The General Assembly made all laws and elected all holders of major offices, including governor, presidential electors, U.S. senators, and many local officials. The General Assembly adhered to the notion of aristocratic stability- control by white males who owned land and slaves. This cohesion of political and economic thought would eventually lead many to support secession.

Sectional tensions in the 1830s, 1840s, and 1850s finally came to a head in November, 1860 with the election of Abraham Lincoln. On December 20, 1860, a special Secession Convention approved the Ordinance of Secession. The 1790 constitution was amended to note the withdrawal from the federal Union. The Constitution of 1861 continued the election of the governor by the General Assembly and did not change much from the 1790 constitution.

At the conclusion of the Civil War, South Carolina had to adopt a new constitution to be readmitted into the Union. The Constitution of 1865 preserved many values of the planter elite. It moved closer to a balance between the lowcountry and upcountry in the Senate. The House of Representatives was apportioned based on white population and taxed land value. Legislators continued to select U.S. senators and presidential electors. The governor was popularly elected to a four-year term and was given veto power. The civil rights of former enslaved African Americans were ill defined.  Passage of strict Black Codes designed to regulate former slaves and election to Congress of former Confederate heroes resulted in Congress ordering the creation of a new constitution.

Congressional Reconstruction led to the Constitutional Convention of 1868. Many whites refused to participate as African American men were allowed to vote for the first time. This constitution is the only one to be submitted directly to the voters for approval. Congress ratified it on April 16, 1868.

It was a revolutionary constitution for South Carolina. Representation in the House was based solely on population. The governor continued to be popularly elected. For the first time, it provided for public education open to all races, granted some rights to women, and replaced districts with counties. Property ownership as a qualification to run for public office was abolished. Race as a limit on male suffrage and Black Codes in the 1865 constitution were also abolished.

Following a series of economic downturns in the state, the Constitution of 1898 was adopted by convention and not submitted to the people in referendum. It instituted Jim Crow laws aimed at disenfranchising the state’s African American population while protecting  the state’s poor, illiterate whites. A poll tax was instituted, and men who paid property tax and were able to write and read the state constitution could vote. Local registrars determined who could vote. The poll tax was abolished in 1951 and the Voting Rights Act of 1965 terminated unregulated local voter registration.

The General Assembly maintained its supremacy over the governor and local politics. To dilute the power of the governor, the executive department was split into many local boards and state agencies. The governor was limited to a two-year term with possibility of one reelection.

By the 1960s, the constitution had been amended over 300 times. Throughout the decade, a committee studied the 1895 constitution. In 1970 voters approved changes to five articles. Work continues to reform the constitution and state government. More recent changes have made the executive and judicial branches more independent from the legislative branch and local governments that are more responsive to the people than the General Assembly.

Dr. Charles F. Vaughan us a National Board Certified social studies teacher. A 24-year classroom veteran, Dr. Vaughan currently teaches World Geography and Teacher Cadet at AC Flora High School in Columbia, SC. He earned his Doctor of Education in Curriculum and Instruction from the University of South Carolina. His dissertation, “Official social studies curriculum standards: An analysis of Southern political, cultural, and historical contexts” is a critical analysis of “official knowledge” contained within state social studies standards. 

Guest Essayist: Kyle A. Scott

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Thomas Jefferson, and all those who agree with and find inspiration in the Declaration of Independence, support secession. There is no denying that the Declaration was a statement of secession “When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another…”. Thomas Jefferson stayed true to this point when writing in the Kentucky Resolution (1798) that “the several states who formed that instrument (the U.S. Constitution), being sovereign and independent, have the unquestionable right to judge of its infraction…” Secession is an inherent right in governing bodies and the states themselves ought to have sovereignty over the decision to secede.

The Declaration of Independence was a solidification of prior state action rather than a moment of instigation. Beginning in 1775 the former colonies began declaring themselves states rather than colonies and writing their own constitutions with New Hampshire becoming the first in January 1776 followed by Virginia, South Carolina, New Jersey. Rhode Island renounced its allegiance to Britain and revised its charter a full two months before the Declaration of Independence was adopted. These independent states joined together in an act of secession as they were seeking to dissolve the political bands that tied them to Great Britain. Each colony that fought against the crown was a secessionist regime. Secession is a central part of this nation’s founding sown at the time of its founding.

At the time of the nation’s founding the states considered themselves to be sovereign entities that could compact together to address common needs, and it could reverse that decision if the common governing body no longer fulfilled its duty. Sovereignty was not relinquished. This is not only documented, but procedurally it is reinforced in that each state needed to ratify the primary governing documents before those documents took effect within that state’s legal jurisdiction. For instance, the U.S. Constitution was drafted by a committee in Philadelphia, it was then sent to the states to ratify individually. And while the Constitution only required nine of the thirteen states to be put into effect, only those states that had ratified it would be part of the Union. Those who had not ratified could not take part in the new government. This is a continuation of the political practice started with the Articles of Confederation in which the Second Continental Congress drafted and approved the Articles but then sent them to each state for independent ratification. The same is true of the Declaration of Independence—no state was forced against its will to fight the British once a majority of states accepted the Declaration; rather, it required unanimous consent from each state in Congress.

Secessionist thought is often commingled with the U.S. Civil War, but one of the first moves toward secession after the formation of the United States was undertaken by the New England Federalist Party between 1814-1815 in reaction to the War of 1812 at what is known as the Hartford Convention. Lest we forget that Tennessee was formed through secession from North Carolina, Kentucky from Virginia, and Maine from Massachusetts. Secession is neither uniquely American with Sweden seceding from Norway, Belgium from the Dutch, and Eritrea from Ethiopia to name only a few. But for most Americans our understanding of secession is clouded by the war between the states and the subsequent Supreme Court decision of Texas v White (1869) that declared secession unconstitutional despite historical and normative claims to the contrary.

Almost without exception a discussion of secession introduces the issue of slavery. But that is a product of an undisciplined mind that cannot separate two mutually exclusive ideas rather than a fact of reality. Secession is about self-determination; it is the ultimate weapon against tyrannical government. As Jefferson writes, “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.—That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,–That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government…” A people unable to dissolve political bonds are a people who no longer have the ability to preserve the rights endowed to them by their Creator but have instead given all authority to some distant governing body. This would be antithetical to every precedent-setting document one could read at the time of the founding. To say that states gave up their right to secede when they ratified the Constitution is to not understand the founders as they understood themselves. A people committed to freedom and liberty would not so willingly give up the very thing that allowed them to be free in the first place.

Kyle Scott, PhD, MBA serves on the Board of Trustees for the Lone Star College System and teaches political science at the University of Houston and is an affiliated scholar with the Baylor College of Medicine’s Center for Health Policy and Medical Ethics. Kyle has authored over 70 op-eds, dozens of academic articles and five books, the most recent of which is The Limits of Politics: Making the Case for Literature in Political Analysis. He can be reached at kyle.a.scott@hotmail.com or on Twitter: @kanthonyscott 

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Guest Essayist: Gary Porter

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Maryland is the seventh state admitted to the United States, ratifying the U.S. Constitution April 28, 1788. The current Maryland State Constitution in use was adopted in 1867.

Maryland was the seventh state to ratify the U.S. Constitution, on April 28, 1788. Two months later the U.S. Constitution went into effect with New Hampshire’s ratification on June 21. A study of the “Old Line State” (we’ll see where that appellation comes from in a moment) provides a convenient entry point to address several different constitutional topics; but first a little history:

It is August 27, 1776; the British have mounted their anticipated invasion of Long Island, New York. British General William Howe commits 20,000 of his best troops to the fight, including 8,000 Hessians, against approximately 6,000 ill-equipped and ill-experienced Americans (20,000 to 6,000; hardly seems a fair fight). Howe splits his forces across three fronts and executes a daring nighttime flanking maneuver that utterly surprises the American forces. The Americans are soon routed from their defensive lines and forced to retreat onto fortified Brooklyn Heights. To buy time for the withdrawal, Washington orders General William Stirling, commanding two units of the 1st Delaware Regiment as well as four companies from the 1st Maryland Regiment, to hold his line on the Gowanus Road. The 1st Maryland Regiment (part of the “Maryland Line”) is under the temporary command of Major Mordecai Gist (the unit’s commander, Colonel William Smallwood, is attending court martial duty in the city). The British attack up the Gowanus Road consists of 2,000 troops under the command of General James Grant. The Marylanders, soon reduced to less than 400 men (The Immortal 400)[1] are ordered to hold the line near Vechte-Cortelyou house, a stone building commanding the strategic road and a bridge, the only escape route across the Gowanus Salt Marsh. Not only do Gist’s men hold off the British, they make six amazing counterattacks before being finally forced to scatter and make their own escape back to American lines. Only a handful of the Maryland men are successful. Watching from Brooklyn Heights, General Washington turns to General Israel Putnam and states: ‘Good God, what brave fellows I must this day lose.” The Maryland 1st Infantry will go down in history as “The Old Line,” giving Maryland its claim as “The Old Line State.”[2] Historian, Thomas Field, writing his 1869 book “The Battle of Long Island,” called the stand of the Marylanders “an hour more precious to liberty than any other in history.”[3] As we will see, Maryland will go on to make other important contributions to the establishment of the American union.

In 1632, Lord George Calvert, a convert to Catholicism, was granted a charter by King Charles I to establish “The Province of Maryland.”[4] Actual settlement began two years later, first along the Chesapeake Bay and then proceeding slowly but inexorably westward. Calvert envisioned a colony where religious tolerance would prevail, especially towards his fellow Catholics. Accordingly, in 1649, the Maryland General Assembly passed an Act Concerning Religion which made it a crime to harass a fellow citizen of the colony over their religious preferences. Maryland would eventually gain the largest concentration of Catholics of any of the colonies, to include, in 1715, one John Porter, immigrant ancestor of the writer of this essay. Family legend holds that John was “asked” to leave England after composing and singing publicly a song not entirely complementary of the new reigning monarch: George I of Hanover, brought over from Germany the previous year to take the English throne.

With its moderate weather, 4,000 miles of shoreline and a fine port at Baltimore, Maryland grew to nearly 250,000 inhabitants by 1776.[5] Maryland’s current boundaries were solidified following the settlement of a long-running dispute with Pennsylvania and completion, in 1767, of the Mason-Dixon Line, a project to which two sons of the aforementioned immigrant John Porter allegedly contributed as the surveying team reached the westernmost parts of the state. It would not be until 1820, however, that the term “Mason-Dixon Line” came into common usage. The Missouri Compromise used the term to define the boundary between slave territory and free territory (remember this, we encounter it again).

While no major battles of the Revolution were fought within the state (that would change with the War of 1812 and the Civil War), Maryland was an active participant in the events leading up to the Revolution. In 1776, its delegates, Charles Carroll, Samuel Chase, Thomas Stone, William Paca, signed the Declaration of Independence (with Carroll being the only Catholic to sign). “Charles Carroll of Carrollton” had been an early proponent of independence from the mother country, writing often in the Maryland Gazette under the pseudonym “First Citizen,” and serving on various Committees of Correspondence. A devout man, in a November 4, 1800, letter to James McHenry (of Fort McHenry fame) Carroll wrote: “Without morals a republic cannot subsist any length of time; they therefore who are decrying the Christian religion, whose morality is so sublime and pure…are undermining the solid foundation of morals, the best security for the duration of free governments.” When he died in 1832, Carroll was the last surviving signer of the Declaration and acquired the distinction (dying at 95 years of age) of being the oldest lived Founding Father.

Like other states, Marylanders were bitterly divided as the Revolutionary War loomed; many Loyalists in the state refused to support the Revolution, and saw their lands and estates confiscated as a result.

Responding to a resolution of Congress of May 10, 1776, Maryland’s provincial congress recommended formation of a convention to form a new constitution to replace its royal charter. Fifty-three delegates assembled on August 14, and completed their work on November 8. While the new constitution kept most of the features of government intact, the state’s property qualification for suffrage was lowered from thirty to five British pounds, greatly expanding the electorate. Ironically, following the example set by Virginia earlier that year, on November 8, 1776, the convention put their new constitution into effect by voice vote, without bothering to submit the document to Maryland’s newly expanded electorate.

“Baltimore Town” served as the temporary capital of the confederated states from December 1776 to February 1777, while Philadelphia was occupied by the British. Towards the end of the war, from November 1783, to June 1784, Annapolis, briefly hosted the confederation government, and it was in the Old Senate Chamber of the Maryland State House in Annapolis on December 23, 1783, that General George Washington famously resigned his commission as commander-in-chief of the Continental Army. It was there also, on January 14, 1784, that the Treaty of Paris was ratified, officially ending the Revolutionary War.

Maryland was the last of the thirteen states to ratify the Articles of Confederation, on March 1, 1781, and then only when France threatened to withdraw its treaty-guaranteed protection of the Chesapeake Bay. Maryland had been insisting that the territory north of the Ohio River be ceded to the confederation government by the several states which maintained conflicting claims on it. Virginia’s government agreed to cede its claim to the land but demanded that the claims of Maryland’s land speculators be declared void. Maryland objected, but faced with France’s threat, they ratified the Articles. The event was celebrated across the colonies with fireworks, bonfires and the ringing of church bells.

In September 1786, Maryland played host to the “Annapolis Convention” which produced the famous call for a “Grand Convention,” to take place in Philadelphia the following May. On September 17, 1787, Daniel Carroll (a cousin of Charles Carroll of Carrollton), Daniel Jenifer and James McHenry (of Fort McHenry fame) would share the honor of signing the new constitution for their state.

On April 28, 1788, after a short, five day discussion, Maryland became the seventh state to ratify the U.S. Constitution, by a vote of 63–11.

According to the U.S. Constitution (Article 1, Section 8, Clause 17), the District of Columbia was to be formed from land donated by “particular States.” That turned out to be both Maryland and Virginia; and each state ceded the required land in 1790. But in 1846, with the capitol by now well established, but on only the north side of the Potomac River, Congress returned Virginia’s portion, leaving the District completely within Maryland’s former boundaries.

In August 1814, the state experienced, first-hand, a new war with Britain. In the Battle of Bladensburg,[6] which saw the first appearance on a U.S. battlefield of a sitting U.S. President (second-term-President James Madison). British troops easily pushed back a hastily formed composite force of militia and regular troops and continued their march on “Washington City.” The following month, the unsuccessful British siege of Fort McHenry provided the backdrop for the composition of our National Anthem by Maryland native Francis Scott Key.

Forty-five years later, Maryland pondered whether to join the growing list of seceding states south of the now famous Mason-Dixon Line. The state had effectively legalized slavery more than one hundred years before (in 1752) when it prohibited the manumission of slaves, and many citizens were eager to join the confederacy. An early vote of the legislature, which might have gone for secession, was stifled by President Abraham Lincoln’s declaration of martial law and his unconstitutional suspension of Habeas Corpus. When the Maryland legislature finally took up the matter, they voted 53-13 to remain in the Union. While many today claim that the (inaccurately named) Civil War[7] settled the idea of secession, the issue, as we will see later, is still very much alive.

The first fatalities of the Civil War (called in the South, more accurately, the War for Southern Independence) occurred during riots which took place in Baltimore on April 18 and 19, 1861. Union troops moving from one train station to another to continue their journey southward to protect Washington, D.C. were confronted by an angry and armed mob. The troops, set upon with “bricks, paving stones, and pistols,” fired on the crowd. When the smoke cleared, four soldiers and twelve civilians had been killed. Small skirmishes between citizens and police occurred throughout the city for the next month.

Determined to keep a route through Maryland open for the transport of troops and supplies from the northern states, on April 27, President Lincoln authorized General Winfield Scott to suspend the writ of habeas corpus near any military supply line between Philadelphia and Washington “if the public safety required it.”

On September 17, 1862, Confederate forces were defeated at Antietam, just west of Frederick, Maryland (hometown of the then Chief Justice Roger Taney). Remembered as the “Single Bloodiest Day of the Civil War,” the Battle of Antietam (known in the South as the Battle of Sharpsburg) caused more than 23,000 casualties.

A week later, as a result of continued unrest, particularly in Maryland but elsewhere in the Union as well. Lincoln issued a proclamation stating that “all Rebels and Insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice, affording aid and comfort to Rebels against the authority of United States, shall be subject to martial law and liable to trial and punishment by Courts Martial or Military Commission.” Further “That the Writ of Habeas Corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prison, or other place of confinement by any military authority or by the sentence of any Court Martial or Military Commission.”[8] (Emphasis added)

Lincoln later explained his actions in a letter to Albert G. Hodges on April 4, 1864, by stating: “I felt that measures, otherwise unconstitutional, might become lawful, by becoming indispensable to the preservation of the constitution, through the preservation of the nation.”[9]

In July 1864, the little-known Battle of Monocacy was also fought on Maryland soil, again near Frederick.

The 1864 Maryland Constitution, ratified in October, freed the state’s slaves a year before ratification of the 13th Amendment.[10] On April 14, 1865, Marylander John Wilkes Booth assassinated President Lincoln.

Today’s Maryland government is based on its 1867 Constitution, the last of four. The 1776 constitution was followed by a second in 1851, and a third in 1864. At approximately 47,000 words, today’s Maryland Constitution is much longer than the average length of a U.S. state constitution (about 26,000 words). By comparison, the United States Constitution, including amendments, is only about 8,700 words long.

When compared with the U.S. Bill of Rights, Maryland’s 1776 Constitution lacked specific protections for:

  • Freedom of Speech and Freedom of Assembly (U.S. 1st Amendment)
  • A Right to Keep and Bear Arms (U.S. 2nd Note: Maryland is one of the few states still lacking the equivalent of the Federal Second Amendment)
  • Right to a Grand Jury when Life/Limb is imperiled, protection against double jeopardy and protection of private property against government taking without compensation (all found in the U.S. 5th Amendment)
  • Protection of unenumerated rights (U.S. 9th Amendment, this was added in the 1851 Constitution)
  • Reservation of non-delegated powers to the states/people (U.S. 10th Amendment, this was added in the 1867 Constitution)

Conversely, Maryland’s Declaration of Rights today contains the following protections and principles not found in the U.S. Bill of Rights:

  • A relief from taxation for all “paupers.” (still there!)
  • Protection of the common law of England. (still there!)
  • A right to trial by jury (this right is assumed by the Constitution but only secured for certain classes of citizens).
  • Juries in criminal cases are declared to be judges of law as well as fact (jury nullification, added in the 1867 Constitution, see below).
  • A statement that “all government of right originates from the people, is founded in compact only, and instituted solely for the good of the whole.”
  • A statement that “the people of the State ought to have the sole and exclusive right of regulating the internal government and police thereof.”
  • A statement that “all persons invested with the legislative or executive powers of government are the trustees of the public, and, as such, accountable for their conduct.”
  • A statement that “every man, having property in, a common interest with, and an attachment to the community, ought to have a right of suffrage” (whether U.S. citizen or not?).
  • A statement that “the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.”
  • A statement that no power of suspending laws, or the execution of laws, unless by or derived from the Legislature, ought to be exercised or allowed.
  • A statement that “no aid, charge, tax, fee, or fees, ought to be set, rated, or levied, under any presence, without consent of the Legislature.” (No taxation without representation!)
  • A statement that “the levying taxes by the poll is grievous and oppressive.” (I.e. no poll taxes will be allowed)

We should take a moment here to note the uniqueness of Maryland securing a right of jury nullification in its constitution. To my knowledge it is the only U.S. state to do so. In 2002, South Dakota voters rejected a state constitutional amendment to permit criminal defendants to argue in favor of jury nullification; and in 2012, New Hampshire passed a law explicitly allowing defense attorneys to inform juries about their right of jury nullification, only to have the New Hampshire Supreme Court effectively nullify the law.[11]

The ability of a jury to refuse to return a guilty verdict because it feels the underlying law to be unjust has a rich history going back to at least Magna Carta (1215), if not before — the famous trial of William Penn being the perfect example.[12] In this country, the practice was common from before the Revolutionary War to beyond 1850 when rampant jury nullification of the Fugitive Slave Act occurred throughout the North. The Supreme Court has never taken up the issue but Associate Justice Sonya Sotomayer apparently views it favorably.[13]

The primary impetus for the 1851 Constitution was a desire to reapportion the Maryland General Assembly. This constitution also changed the status of the City of Baltimore and its relationship with the surrounding Baltimore County. The city was given the status of the (soon-to-be) 23 counties of the State and a provision for “home rule.” Growing criticism of the 1851 Constitution, especially relating to how the judiciary functioned, led to pressure for yet another revision.

The 1864 Constitution was written in the midst of the Civil War. Unionists controlled the Maryland government at the time and made some significant changes to the document. It was approved by a bare majority (50.31%) of the state’s eligible voters, which included Union soldiers from other states temporarily assigned to Maryland! Perhaps its most controversial feature was the temporarily disfranchisement of the approximately 25,000 Marylanders who were at that time fighting for or supporting the Confederacy.

Only three years later, the Constitution of 1867 was approved. As noted, it still operates today. Subsequent amendments have been approved which brought changes to the wording in the main constitution and amendments to the Declaration of Rights, the last of these occurring in 2010.

In 2019, Maryland is home to slightly more that 6 Million people.[14] Interestingly, its state government has been continuously controlled by the Democratic Party for nearly 100 years. In 2013, frustrated conservatives in the five western-most counties famously mounted an effort to secede from the remainder of the state and form a new one, called Western Maryland.[15] This call to secede joined similar efforts in California, Arizona, Michigan and Colorado — proving that the issue of secession lives on.

The “Old Line State” has produced many noted politicians and four Supreme Court Justices. They include:

  • Spiro T. Agnew, former Governor of Maryland and Vice President of the United States
  • Sargent Shriver, former Vice Presidential candidate
  • John Bolton, former United States Ambassador to the United Nations
  • Steny Hoyer, current House Minority Whip, U.S. House of Representatives
  • Nancy Pelosi, current Speaker of the U.S. House of Representatives
  • Samuel Chase, former Associate Justice of the Supreme Court
  • Roger Taney, former Chief Justice of the United States
  • Thurgood Marshall, former Associate Justice of the Supreme Court
  • Brett Kavanaugh, current Associate Justice of the Supreme Court

The Old Line State provides both the historian and constitutional scholar much to occupy their time. With one of the oldest state constitutions still operating today, including one of the longest Declarations of Rights, a detailed study of the rights of Maryland’s citizens will be time well spent.

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 a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] Some accounts put the unit at 260 remaining men, of which only a handful survived the day.

[2] The story of the “Maryland 400’s” heroic stand is told by Patrick K. O’Donnell in Washington’s Immortals: The Untold Story of an Elite Regiment Who Changed the Course of the Revolution.

[3] https://books.google.com/books/about/The_battle_of_Long_Island.html?id=TFYOAAAAIAAJ.

[4] Named after the King’s wife, the former French princess Henrietta Maria, aka Queen Mary.

[5] https://plymouthcolonytourism.weebly.com/population.html.

[6] https://en.wikipedia.org/wiki/Battle_of_Bladensburg.

[7] A “Civil War” is normally fought over who will control an existing government. The South had no interest in taking over the government of the Union.

[8] https://www.thoughtco.com/lincoln-issues-proclamation-suspending-habeas-corpus-3321581.

[9] http://www.abrahamlincolnonline.org/lincoln/speeches/hodges.htm.

[10] Ratified on December 18, 1865.

[11] https://en.wikipedia.org/wiki/Jury_nullification#State_laws.

[12] http://constitution.org/trials/penn/penn-mead.htm.

[13] https://www.thenewamerican.com/usnews/constitution/item/22588-supreme-court-justice-sotomayor-supports-practice-of-jury-nullification.

[14] http://worldpopulationreview.com/states/maryland-population/.

[15] https://www.foxnews.com/politics/western-marylanders-push-to-secede-from-state.

Guest Essayist: Tony Williams

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In the fall of 1779, John Adams was home in Massachusetts during a respite from his diplomatic responsibilities in Europe. While he was there, Adams drafted the state constitution that built on the constitutions and experiences of other states, using them as a model of success and failure. The resulting Massachusetts Constitution was a balanced constitution.

Royal authority had collapsed in Massachusetts in 1775, and the state was governed by a provincial congress under the 1691 colonial charter. The legislature had drafted a constitution in 1778, but the sovereign people of local townships had rejected it.

The people of Massachusetts concurred with other Americans that written constitutions were perpetual fundamental law made by the representatives of the people at popular conventions called for that purpose. The Massachusetts legislature, however, was an ordinary lawmaking body that was not invested with the authority to create such a constitution.

In early 1779, all free men over 21 were eligible to vote for delegates to a special constitutional convention which began meeting in September. The constitution would need ratification by two-thirds of those same men to become fundamental law. This was an expression of the principle of popular sovereignty, or the will of the self-governing people.

The convention called a drafting committee which then appointed a subcommittee of James Bowdoin, Samuel Adams, and John Adams to write the constitution. Bowdoin and Samuel Adams deferred to John Adams to complete the task. Adams finished his assigned work and submitted it to the convention which made revisions and submitted it to the people for ratification in March 1780. It was adopted in June.

The Massachusetts Constitution of 1780 was comprised of the familiar principles of the American Founding especially those found in the Declaration of Independence. The preamble asserted that the sovereign people formed a social compact with each other to create a republican government whose purpose was to protect the natural rights of the people. They had a right to alter that government for one that best protected their safety and happiness.

The first part of the constitution was a declaration of rights. All men were born free and equal with inalienable rights including life, liberty, and property. The constitution stated that worshipping God was a right of conscience as well as a duty. In order to promote ordered liberty, virtue, morality, and happiness, the constitution simultaneously instituted a limited establishment of the Christian religion. Public money would support the Congregationalist Church, but dissenters could allocate their taxes to their own denominations.

Other principles of the Massachusetts Constitution were popular sovereignty, free and regular elections, and no taxation without consent. Fundamental rights that were protected included the rights of the accused, property rights, and the right to bear arms.

The text of the constitution was rooted upon the principles of separation of power and checks and balances. Those principles found expression in three branches of government: legislative, executive, and judicial. The bicameral legislature was divided into two houses based upon the negative experience of Pennsylvania with only one house. The governor and lieutenant governor ruled with the advice of a nine-member council. The governor could veto laws, but the legislature could override the veto by a two-thirds vote. The third branch was an independent judiciary.

The representatives and senators of the General Court legislature and the governor were elected annually. All free men over 21 could vote if they held a certain amount of property because of the prevailing view that propertyless men were dependent upon others and could not render an independent vote. The state judges served for life and during good behavior. Although the state constitutional convention removed a religious test for office, legislative and executive officials had to take an oath to the Christian religion.

The Massachusetts Constitution was predicated on the belief that, “wisdom, and knowledge, as well as virtue, diffused generally among the body of the people, [was] necessary for the preservation of their rights and liberties.” Therefore, the public would support public schools, literature, seminaries, science, agriculture, arts, and trades. This public encouragement would “countenance and inculcate the principles of humanity and general benevolence, public and private charity, industry and frugality, honesty and punctuality in their dealings; sincerity, good humor, and all social affections, and generous sentiments among the people.”

The Massachusetts Constitution of 1780 was drafted and adopted with the aid of examples and experience in other states. It contained its share of paradoxes such as religious liberty coexisting with religious establishment and broad democratic principles but property requirements for voting and officeholding. The constitution, however, represented the republican principles of the American Revolution and Founding as fundamental law.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

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Guest Essayist: Martha Zoller

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Georgia, my home state, was admitted into the Union on January 2, 1788 and was fourth of the thirteen original states to ratify the U.S. Constitution. Georgia is known as “The Peach State” or “Empire State of the South.”

When James Oglethorpe claimed Georgia (named for King George III) in 1732, he then brought settlers to Savannah in 1733, who would have thought that less than 50 years later, there would be a war for independence from England. This was one of the challenges for Georgians. Many were not that far removed from life in England and many were not sure about this new initiative called the United States of America.

That didn’t stop Lyman Hall, Button Gwinnett and George Walton from signing the Declaration of Independence in 1776. These three men would find their names on three of the 159 counties in Georgia in the fastest growing part of Georgia some 240 years later.

Georgia’s legislature chose six representatives to the Philadelphia Convention of 1787. Of those, George Walton and Nathaniel Pendleton never attended. The four who attended were William Few, Abraham Baldwin, William Pierce, and William Houstoun. William Pierce made notes on the other delegates that have become important historical documents. The two Georgia delegates who signed the finished Constitution on September 17 were Abraham Baldwin and William Few.

Neither of Georgia’s signers was a native Georgian. Abraham Baldwin had come to the state about three years before the Constitutional Convention. A native son of Connecticut with a theology degree from Yale served the Revolutionary cause as a chaplain in the Continental Army. After the war he studied law and moved to Augusta, Georgia, to practice his new profession. He was involved in government as a member of the Georgia legislature. As one of Georgia’s delegates to the convention, Baldwin cast a vote that resulted in a tie on the very controversial matter of representation in the upper house or Senate in the Congress, buying time for a compromise to be worked out. He considered this his most important contribution to the constitution. He later served in the Congress and was instrumental in founding the University of Georgia.

William Few came to Augusta as the revolutionary movement gained momentum in the mid 1770s and quickly became involved with the Patriot cause. He was a member of the committee that wrote the state constitution of 1777.

The ratification of the United States Constitution inspired Georgia to re-write their state constitution in 1789. The latest version of the Georgia Constitution was adopted in 1983 and has been amended hundreds of times through voter resolutions.

Martha Zoller is a policy advisor and has worked for Senator David Perdue and is now working for Governor Brian Kemp. Zoller spent 20 years in media. Martha is a wife, mother, Oma, lifelong Georgian, culture guru and lover of the Constitution. 

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Guest Essayist: Daniel A. Cotter

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3 – New Jersey – December 18, 1787

Third of the thirteen original states to ratify the U.S. Constitution and join the United States,

“The Garden State” of New Jersey entered the United States December 18, 1787. The New Jersey State Constitution in use today was adopted in 1947 (effective January 1, 1948) and has been amended several times since in minor ways, but its first constitution, written during the crisis of the Revolutionary War, was adopted on July 2, 1776.

Constitutional Convention

New Jersey sent five delegates to the Constitutional Convention in Philadelphia- David Brearley, Jonathan Dayton, William Livingston, William Patterson, and William Houston.  Only the first four signed the Constitution in September 1787, as Houston missed most of the Convention due to illness.   Livingston was the first Governor of New Jersey, holding the position from 1776 until his death in 1790.  His duties in that capacity limited his participation in the Convention, but he was Chair of the Committee of Slave Trade, which developed the compromise on the slavery issue.  Livingston also was an active supporter of New Jersey’s quick ratification of the Constitution.  Brearley’s main contribution appears to be helpful in developing the Electoral  College as part of the Committee of Leftovers, Dayton’s appears to have been minimal, although he participated occasionally in debates, and Patterson introduced the New Jersey Plan, which protected the smaller states against the larger ones. The New Jersey Plan proposal contemplated a unicameral legislature, as the Articles of Confederation contained, with equal voting for each state.  It also would have had the national legislature select the executive.  Although the New Jersey Plan did not prevail, its concept of protecting smaller states was reflected in the Senate provisions.  Patterson would become an Associate Justice of the Supreme Court of the United States in 1793, a position he held until his death in 1806.

The New Jersey Ratifying Convention met in Trenton from December 11 through 20, 1787, and ratified the Constitution on December 18, 38-0, becoming the third state to do so.  Not much appeared to have been debated during the days the New Jersey Ratification Convention met, as the new federal Constitution addressed the major concerns and needs of the state.  In addition, it appears only Federalist delegates were selected to attend the New Jersey Convention.  New Jersey also had a very large debt and heavy levies would have been required, so that too provided motivation for New Jersey to ratify the U.S. Constitution.

New Jersey became the first state to ratify the Bill of Rights when they were submitted, approving eleven of the twelve proposed.  Like Delaware, New Jersey in 1787 was a smaller state and with the protections of smaller states incorporated into the final Constitution, with a  strong national government, New Jersey delegates were satisfied.

The New Jersey Constitution

Immediately before the approval of the Declaration of Independence, the New Jersey delegates met in haste to consider a state constitution to address the emergency and likely imminent invasion by British forces.  Written as a temporary document to address the urgency of the state, it remained in place until 1844.  The constitution allowed all inhabitants worth at least fifty pounds the right to vote, and contained a number of different provisions, including maintenance of the common law and a prohibition on deodand (forfeiture of objects that caused someone’s death).  It also included a free exercise of religion and an establishment clause.

On June 29, 1844, New Jersey adopted its second constitution, which limited suffrage to white males and separated the government into three branches.  The 1844 constitution was one of the first to include a debt ceiling concept in it.  The 1844 constitution was amended in 1875 to conform it to the Fourteenth and Fifteenth Amendments to the United States Constitution.

The current constitution became effective in 1947 and is similar to many state constitutions, although it also contains specific provisions addressing casinos and their regulation.  The current version also includes a provision that terms such as “person” refer to both sexes.

Conclusion

Like Delaware, had New Jersey for some reason not ratified the Constitution, there would still have been a United States.  Little did the four signers of the Constitution from New Jersey in 1787 foresee that their relatively small state would be the 11th most populous in present times.  New Jersey’s delegates were instrumental in protecting the smaller states and although the Virginia Plan ultimately was the winner in the final Constitution, the New Jersey Plan protections were incorporated.  The Garden State, along with Delaware and Georgia, were the only three of the thirteen colonies to vote unanimously at their state conventions for ratification of this new union, the United States of America.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. 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.

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Guest Essayist: Andrew Hohns

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Birthplace of independence and the United States Constitution. “The Keystone State,” Pennsylvania is second of the thirteen original states to ratify the U.S. Constitution and enter the United States. The Pennsylvania State Constitution currently in use was adopted in 1968.

We have in Pennsylvania a form of government founded on principles of individual liberty and self-determination. William Penn’s “Holy Experiment,” as Pennsylvania was called, provided its inhabitants certain inviolable rights through our Charter of Privileges–freedom of religion, liberty of consciousness, the election of our legislative representatives, and protections from abusive government intrusion. Of Pennsylvania, William Penn wrote that it would one day be the “seed of a nation.”

In 1751, on the 50th anniversary of Penn’s Charter of Privileges, the people of Pennsylvania celebrated our freedoms by procuring a new bell for our state house, honoring Penn’s foresight. The inscription on the bell reads: “PROCLAIM LIBERTY THROUGHOUT ALL THE LAND UNTO ALL OF THE INHABITANTS THEREOF.” In 1835, 28 years before the Emancipation Proclamation, courageous abolitionists adopted the bell as a resonant symbol for their demands to end slavery—and they gave our State House Bell the name that we use today, the Liberty Bell.

Such was our form of government in Pennsylvania in 1774, when delegates from the 13 colonies began to gather here. In 1776, they declared these United States free and independent, filled with a people possessed of certain natural rights, among which are life, liberty, and the pursuit of happiness. It is for this reason that we now call our State House, Independence Hall. When America’s founding citizens returned to Philadelphia for our Constitutional Convention, they affirmed that solely in We, the People, there resides the authority to govern. Under this authority, they established a constitutional republic, providing a durable framework through which we govern, respecting individual liberty and relying on broad civic participation and engagement in public affairs. This radical notion of self-determination, clarified and strengthened through many years of debate, discourse, and consideration, is the first ray of light in a sunrise that endures still, shining the power of democracy in over 100 countries around the world today.

In Pennsylvania, the grounds we walk upon are parklands sown from potter’s fields, where the remains of many a brave and fallen revolutionary soldier are often interred below. The streets we walk on are paved with the same bricks traversed by Penn, and later Franklin and Jefferson, Adams and Hamilton, Washington and Lee. The heady courage of those early days—1701, 1774, 1776, and 1787—hangs in the air in Pennsylvania. It permeates our state; it lingers within every home and around every corner.

In the earliest days of our republic, Pennsylvania was called the Keystone State, and this for our role in joining the 13 colonies together. When these extraordinary gatherings of delegates met in Philadelphia, they declared support for a form of government that places individual liberty and self-governance at the center of our great experiment. They committed their lives and fortunes to one another to carry forward the nation through the inevitable and heavy burden of war, aiming toward an ideal of service and cooperation, a defense of liberty, and a furtherance of the power of industry and innovation. Because in Pennsylvania we cast our lots together, we are called a Commonwealth.

Where Pennsylvania established our first city in 1682, so too did America in 1776, for as Robert Morris wrote, Philadelphia is to America as the heart is to the human body. Since that day, the promise of liberty and all it inspires has flowed forth from our metropolis to course through the veins of a vast and growing nation.

Today, the Keystone State continues to bring together many diverse peoples and cultures, from both the whole of America and many corners of the world—Independence Hall and the Liberty Bell last year welcomed visitors from all 50 states and 76 countries. Proud to unite our 13 original colonies in declaring Independence, the Keystone State now joins and strengthens a national archway enlarged to 50 states and 7 territories, beckoning those who yearn to be free, inspiring those who defend the cause of liberty, and providing peace to those who seek to exercise the natural rights of humankind. Pennsylvania is to democracy as fertile earth to a farmer—with care and attention, we reap the plentiful harvest sown from the seeds of life, liberty, and the pursuit of happiness.

This radical form of government endures, for as we stand here in 2019, we are merely seven years away from the Semiquincentennial anniversary of the United States, the 250th year of the people, by the people, and for the people. Many and varied are the dividends of our form of government in our first 250 years—inventing the computer, the Internet, and wireless communication; giving birth to flight, breaking the sound barrier and landing a man on the moon; animating the world with motion pictures, jazz, and hip hop; creating vast opportunity through a global capital market, a start-up economy, and a culture of hard work; and protecting our young with vaccines for cholera, plague, and polio.

But in America, we do best to celebrate our history by making the history of the future, inspiring contributions and service from one another as citizens. We aim together toward that more perfect union, recognizing that much still remains to be accomplished—providing shelter for the unhoused, food for hungry, and care for the sick, defending the rights of the oppressed at home and abroad, offering aid and asylum to those in need, securing the health and well-being of our natural environment with clean air, clean water, and safe communities, teaching all of our children to read, to work, and to vote, and continuing to advance, refine, and improve our own government from town school boards to federal offices.

Our form of government relies upon our willingness to renew our high ideals in each successive generation. We aim toward universal justice, equality, and freedom, fueled by the knowledge that our work remains incomplete. The power of democracy derives from the realization that there remain injustices to combat, rights to secure and defend, and oppression and tyranny to root out. We become America in each generation by progressing toward these ambitions.

Our aspirations as a people can only be realized through the participation of each person. Our successes and our shortcomings are tied together. We rely upon each other—through volunteerism, small and uncelebrated acts of kindness, the nurturing of our children by caring teachers, the selfless bravery of men and women in our military, law enforcement, and firefighters—these common threads of personal commitment all woven together into a banner of duty to this nation and to one another. For whether we are down the street or across the country, we are all neighbors.

Now, as we approach America’s 250th anniversary, we are asked to take stock of where we have been and where we are going. We honor our nation by seeing our past for what it has been—at turns inspiring, but not without flaws, aiming toward justice, but not without a history of slavery and oppression, aspirational and sincere, but not without demagoguery and disillusionment. We likewise honor our nation by seeing our present for what it is—democracies exist in reality, and today’s reality, so it is sometimes said, is one of an America divided. The antipathy of red and blue, young and old, rich and poor: these “divisions,” reinforced through certain beguiling echo chambers of modern technology, are said to impede our civic engagement and acts of mutuality. But another view is that we share a deeply held commitment to defend the rights that make us America—personal liberty, religious freedom, protection from unwarranted intrusion, the agency to pursue one’s own hopes and goals, the ability to be whomever and whatever each of us may wish to be. When we recognize and reject the forces that would conspire against America—incivility and ignorance, intolerance and intimidation—we are then most able to honor our nation by securing for our future the promise it contains. Let us recommit to our founding principles with courage, compassion, and daring. The promise of democracy is the realization that within ordinary people swell extraordinary possibilities.

It is now for us to carry forward our nation and to deliver this more perfect union to our children and grandchildren. The path to this future is clear before us: we can volunteer, serve, and participate, engaging one another sincerely, with compassion and civility, appealing always to the highest of human capabilities. With these principles as our guideposts, we are well equipped to reflect upon the defense of our values in the modern world. Could our founding fathers have possibly anticipated that guns would be turned upon our children in our own schools? Could they have anticipated the ubiquitous web of personal information and connectivity of the internet, and the associated challenges to personal privacy? Could they have anticipated the dislocations of vast populations and the associated crises in human rights? Many are the questions that we face today, in our generation of America, to visit and revisit. The strength of our form of government derives from the conviction that We are the People with the knowledge, patience, and determination to address and solve these problems.

As we do in America from generation to generation, let us come together again—let us return to our Keystone State, Pennsylvania—inspiring our fellow citizens through service and cooperation, strengthening our national fabric by honoring the high ideals on which our nation was founded, and supporting and defending the principles of our American Republic, at home and around the world.

In the words of General Washington, “Let us raise a standard to which the wise and honest shall repair.”

Dr. Andrew Hohns is the Chairman of the Board of the nonprofit USA 250 an organization founded to spark the nation’s imagination leading into and through the United States Semiquincentennial, 2026, our Nation’s 250th birthday.  He was also appointed by Congress in 2016 to the United States Semiquincentennial Commission, the Commission established by Congress to direct the celebration of our Nation’s 250th birthday. Dr. Hohns is Managing Director at Mariner Investment Group and serves as Lead Portfolio Manager for two fund strategies related to infrastructure investment. He holds a BS in Economics from the Wharton School at the University of Pennsylvania, a Masters in Liberal Arts from the School of Arts and Sciences at the University of Pennsylvania, and a PhD in Applied Economics and Managerial Sciences from the Wharton School at the University of Pennsylvania. He also serves as a board member of the United States Fund for UNICEF and has served from time to time as an Adjunct Assistant Professor at New York University’s Stern School of Business.

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1 – Delaware – December 7, 1787

As the Constitutional Convention came to a close in Philadelphia, America’s founding representatives signed the United States Constitution on September 17, 1787. Then, the first of the thirteen original states to ratify and approve this document, this new U.S. Constitution, which replaced the Articles of Confederation, was Delaware, signing on December 7, 1787. This signing admitted  Delaware, known as “The First State,” to the United States on December 7, 1787, subject to at least nine other colonies joining in agreeing to the U.S. Constitution. The current Delaware State Constitution in use, which is the fourth constitution in Delaware,  was adopted in 1897, but its first was adopted on September 20, 1776.  The first constitution referred to the state as “The Delaware State.”

Constitutional Convention

Delaware  sent five delegates to the Constitutional Convention in Philadelphia- Richard Bassett, Gunning Bedford, Jr., Jacob Broom, John Dickinson, and George Read.  Surprisingly, all five signed the Constitution in September 1787.  (Evidence is that Dickinson was not feeling well, and left the convention a day early, asking Read to sign his name to the document.)  Of the twelve colonies who signed the Constitution, only Pennsylvania had more signers than Delaware (eight).

The delegates were sent to Philadelphia with instructions that they were okay to offer amendments to the Articles of Confederation, but only “to render the Federal Constitution adequate to the Exigencies of the Union.”  These five delegates, who had attended the Annapolis Convention, were given instructions they could not change the one state, one vote framework for the Articles.

Dickinson has been credited with proposing a solution to address a proposal that the two houses of the Congress be represented according to population, offering that the Senate provide for every state to be equal and the state legislatures to pick the Senators.

Delaware was a very small state in area and in population.  They had no major economic center or product, and yet despite small size, their coast line was large.  The Delaware Ratifying Convention met on December 3, 1787 and, shortly after meeting, became the first state to ratify the Constitution, by a unanimous vote, 30-0, on December 7, 1787.  The only other states to vote unanimously to ratify the Constitution were New Jersey and Georgia.  Delaware beat Pennsylvania by five days in ratification.

Reports of the Delaware Ratifying Convention have been lost.  But by accounts, other than a petition to reject delegates who had been selected by Sussex, not much debate ensued.  Citizens of Delaware desired a stronger national government than the Articles provided. As part of the approvals, Delaware also recommended cession of land for the new Federal Capital to be located within its boundaries.  That last offer of course did not happen.

Of the five delegates who attended the Constitutional Convention in Philadelphia, Dickinson was probably the most prominent.  Known as “Penman of the Revolution,” he wrote the Liberty Song in 1768.  In that same year and the next, he also wrote a series of papers known as Letters from a Farmer in Pennsylvania, attacking British taxing policies.

In 1788, after Delaware ratified the Constitution, Dickinson wrote nine letters as Fabius, answering various Antifederalist arguments, in an effort to reinvigorate ratification progress in other states.

The Delaware Constitution

Immediately following the Declaration of Independence, the Delaware General Assembly met and approved the calling of a state constitutional convention.  The convention met in August 1776, naming Read President.  On September 20, 1776, the convention approved the new constitution and it became effective.  Delaware became the first state to have a convention write a constitution after the Declaration of Independence.  The constitution had a bicameral legislature, an executive with broad authority after consulting with the Privy Council, and a judicial branch that the Executive and General Assembly selected. The constitution prohibited the entry of anyone from Africa or other places for the purpose of holding the individuals in slavery.

The 1776 constitution was replaced by the Delaware Constitution of 1792, which remained in effect until 1831, when a convention approved a third state constitution. The current constitution, Delaware’s fourth, was adopted in 1897 and remains in effect.

Conclusion

Unlike some larger, more influential states, had Delaware for some reason not ratified the Constitution, there would still have been a United States.  However, its delegates contributed to the Constitutional Convention in Philadelphia, including the proposal that eventually addressed small versus large state representation, and through its leadership in being the first state to ratify the Constitution and by a unanimous vote.

Dan Cotter is a partner at Latimer LeVay Fyock LLC and an adjunct professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies. His book, “The Chief Justices,” (April 2019, Twelve Tables Press), is available now. 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.

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State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?

“Americans are the heirs of a constitutional tradition that was mature by the time of the national Constitution,” writes Donald Lutz in The Origins of American Constitutionalism.”[1] Beginning with “proto-constitutions” such as the Mayflower Compact, the Pilgrim Code of Law and the Fundamental Orders of Connecticut, Americans had spent more than 150 years learning and perfecting the art of constitution-writing — and the thirteen state constitutions which were in effect when the national constitution was ratified in 1788 were an important step in that process. “It would not be putting the matter too strongly to say that the United States Constitution, as a complete foundation document, includes the state constitutions as well.”[2] Tragically, Americans, whose knowledge of their national constitution is dismal enough,[3] show even less interest in those of their own states. This is doubly tragic when you consider that American lives are arguably more affected by the laws of their state than by federal law.

As to what it would mean for the states to be run by their citizens rather than royal rule, some colonies had not known “royal rule” for quite some time.  The charters of 1662 (Connecticut) and 1663 (Rhode Island) had given each of these colonies permission to elect their own governors rather than live under governors appointed by the king, as was the rule elsewhere. In fact it was the “self-rule” aspects of these charters that persuaded the two states to not construct new constitutions after July 4th 1776, finding instead that they could continue operating under the structure of these charters as independent states. Even in those colonies operating under royal appointees, those governors rarely interfered in the affairs of their elected legislatures, making Parliament’s “Intolerable Acts” of 1774[4] even more intolerable.

Every government, every organization for that matter, has a constitution, whether one has been purposely created for it or not; this is simply a fact of voluntary association. Until a written constitution is drafted to guide it, any organization will, over time, adopt formal or informal rules to guide the organization and its affairs. These rules comprise a constitution, often an unwritten one.

Black’s Law Dictionary[5] defines “Constitution” as “The organic and fundamental law of a nation or state, which may be written or unwritten, establishing the character and conception of its government, laying the basic principles to which its internal life is to be conformed, organizing the government, and regulating, distributing, and limiting the functions of its different departments, and prescribing the extent and manner of the exercise of sovereign powers.”

America had a constitution in 1776, or at least so thought Jefferson when he complained in the Declaration: “[The King] has combined with [Parliament] to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws.” (Emphasis added).  “Our constitution,” not “our constitutions” (which could have pointed to the several state constitutions by then in force).  While the colonies certainly lacked a common, written constitution, the last 150+ years of successful collective self-government had resulted in the informal incorporation of many features of government which combined to comprise an unwritten constitution – which Jefferson claimed was being violated.

“Reading properly and carefully, one can glean from a constitution the balance of political forces, a structure for preserving or enhancing that balance, a statement of the way people should treat each other, and the values that for the basis for the people’s working relationship, as well as the serious, remaining problems in the political order.”[6]

In July 1776, when the thirteen united colonies claimed their independence and became “free and independent states,” they had a long relationship with self-governance –Virginia, the oldest colony, since 1619; and the autonomy they enjoyed would not be so easily given up to a Parliament which, in 1766, had claimed for itself the right to legislate for the colonies “in all matters whatsoever.”[7]

By 1776, each colony was operating under a charter from the King of England, some royal, some proprietary, which defined its leadership/governing structure and the rights to be enjoyed by the colony’s inhabitants. Virginia’s 1606 charter, for instance created a thirteen-member governing council in Virginia shadowed by another thirteen-member council back in England. The colony’s citizens were to enjoy “all liberties, franchises and immunites within anie of our other dominions to all intents and purposes as if they had been abiding and borne within this our realme of Englande”[8]

On May 10th, 1776, the Second Continental Congress issued a resolution encouraging any of the colonies who had not already done so 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.” [9] Sent out on May 15th after a prologue had been added, the resolution arrived too late for several colonies. The previous January, New Hampshire had unilaterally enacted a new constitution, the first to do so.  South Carolina had followed suit on April 12th.  On May 4th, 1776, the legislature of Rhode Island, sensing the mood of the country, passed a bill that replaced an act of allegiance to the king with an oath of allegiance to the state – effectively declaring their independence. As previously noted, Connecticut’s “Fundamental Orders,” adopted in 1638 while the state was still an English colony, included no overt allegiance to England. It would not be until 1818 that Connecticut would get around to drafting a new constitution. Virginia had already issued its call for a constitutional convention, to assemble in Williamsburg on May 5th. Their new constitution was enacted 5 days before Jefferson’s Declaration was approved in Philadelphia.

Responding to Congress’ resolution, the other colonies began to take action:  Maryland, Delaware, Pennsylvania, North Carolina, and New Jersey all enacted new Constitutions later that year.

Georgia and New York put new constitutions in place the following year, Massachusetts in 1780.

These first state constitutions “were the most detailed and legally binding collective expression of the revolutionaries’ political ideas in 1776.”[10]  Often overshadowed by the Constitution of 1787, the state constitutions are a rich treasure trove of republican and democratic principles.

Why were the state constitutions still needed after the U.S. Constitution went into effect twelve years later? Simply because the formation of a new national government did not eclipse the state governments, in fact it relied upon the states to continue to provide the vast majority of governmental services within each state, which the Tenth Amendment to the U.S. Constitution obliquely reminds us: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”[11]

Eleven of the original thirteen state constitutions contained specific protections for individual rights. While a state document cannot deny a right secured in the national document, in some cases the states secure rights for their citizens which are not mentioned or are elucidated differently in the national document.  For instance, Pennsylvania and a few other states make it clear that “the people have a right to bear arms for the defence of themselves and the state,” significantly clearer than the confusing wording of the U.S. Second Amendment. (Emphasis added). The North Carolina constitution secures a right for its citizens to “instruct their representatives,” and requires that jury decisions be unanimous (as do several other state constitutions). Maryland secures a right for its citizens of resistance, against arbitrary power and oppression.” Delaware’s first constitution (enacted September 10,1776) outlawed slavery in the state.

In many cases, these first state constitutions take the opportunity to explain principles of government which the Framers of 1787 apparently thought were so “self-evident” as to not require mentioning. For example, the Virginia Declaration makes the following statements (here paraphrased) not found in the U.S. Constitution:

  • That all men are by nature equally free and independent, and have inherent rights that they cannot, by any compact, deprive or divest their posterity.
  • That all power is vested in, and consequently derived from, the people.
  • That magistrates should be at all times amenable to the people.
  • That elected officials should be returned to the body of the people to feel, once again, their burdens.
  • That government is instituted for the common benefit, protection, and security of the people, nation or community.
  • That a majority of the community has a right to reform, alter or abolish their government.
  • That no individual or group is entitled to exclusive or separate benefits or privileges from the community.
  • That citizens should evidence a permanent common interest in, and attachment to, their community before being allowed to vote.[12]

Today, a Massachusetts legal organization cautions: “Some of the protections bestowed by the [Massachusetts ] Declaration of Rights duplicate those enumerated in the Bill of Rights, while others confer greater protection of individual liberties. Too few Massachusetts criminal defense attorneys utilize the additional protections afforded to Massachusetts citizens under the Declaration of Rights in defending their clients. A criminal defense lawyer who fails to specifically cite the Massachusetts Declaration of Rights in objections at trial or issues raised on an appeal may needlessly consign his client to a prison cell.”[13]

Another advantage of the state constitutions lies in their generally being easier to amend than the national constitution. As a consequence, the state constitutions are amended far more frequently.  The entire constitution of a state can often be replaced more easily (Georgia and Louisiana are each currently operating under their ninth state constitution since 1776).

For those interested in further study of the 50 state constitutions, the NBER/Maryland State Constitutions Project provides searchable access to almost 150 versions of these documents. The best comparative treatment of the state constitutions, including to what extent they incorporated the leading principles of republican government, is found in Willi Paul Adams’ masterpiece: The First American Constitutions; Republican Ideology and the Making for the State Constitutions in the Revolutionary Era.

State constitutions perform an important role in the governance of America’s 320 Million citizens and play a critical role in making federalism work.  We couldn’t get by without them.

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 a weekly essay: Constitutional Corner which is published on multiple websites, and hosts a weekly radio show: “We the People, the Constitution Matters” on WFYL AM1140.  Gary has also begun performing reenactments of James Madison and speaking with public and private school students about Madison’s role in the creation of the Bill of Rights and Constitution.  Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).

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[1] Donald Lutz, The Origins of American Constitutionalism, Louisiana State University Press, Baton Rouge, 1988, p.5.

[2] Ibid.

[3] https://www.washingtonpost.com/news/monkey-cage/wp/2017/06/27/too-many-americans-know-too-little-about-the-constitution-heres-how-you-can-fix-that/?utm_term=.8715e5eb6890

[4] https://en.wikipedia.org/wiki/Intolerable_Acts

[5] Black’s Law Dictionary, 4th Edition, accessed at:

[6] Lutz, p. 3

[7] The American Colonies Act 1766, aka The Declaratory Act, explained at https://en.wikipedia.org/wiki/Declaratory_Act

[8] 1686 Virginia Charter

[9] http://startingpointsjournal.com/may-resolution-declaration-of-independence/

[10] Willi Paul Adams, The First American Constitutions; Republican Ideology and the Making for he State Constitutions in the Revolutionary Era, Rowman & Littlefield, Pub, New York, 2001, Preface to the Expanded Edition.

[11] https://en.wikipedia.org/wiki/Tenth_Amendment_to_the_United_States_Constitution

[12] https://en.wikipedia.org/wiki/Virginia_Declaration_of_Rights

[13] https://www.relentlessdefense.com/what-should-i-do/massachusetts-declaration-of-rights/

 

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State Constitutions? – Why would each state need a constitution when we have the United States Constitution? What would it mean for the states to be run by their citizens rather than royal rule?

The first question poses an issue of federalism and the rule of law.  The United States Constitution was drafted to establish a particular form of government at the national level.  Its provisions were not intended mainly to address states as states but individuals who lived in those states.  Federalism as an institutional form allocated certain powers to the national government and more or less left any remaining powers to the states.  If the citizens of any given state were to enjoy the benefits and protections of limited government, some sort of constitutional rules would be required.  Otherwise the state governments would have unlimited authority.  By definition a constitution is an enforceable set of rules, alterable by the people and unalterable by the government.  A state constitution provides such a framework.

This also is one reason why state constitutions are so long, compared to the Federal Constitution.  The state governments possess reserved powers, that is, all power not granted to the national government.  Since this is a very large potential body of power, it is necessary to address any particular power that might be invoked by the state.  In turn, that requires a much more detailed set of provisions, since whatever is not addressed is by definition granted to the state government.

The second question is one of self-governance.  John Locke had argued that all legitimate government was established by a social contract founded on the “consent of the people.”[1]  For Locke this was the only effective way to limit the power of government to its ordained functions—the protection and promotion of the natural rights of life, liberty and property.  Royal rule implied a centralized and removed form of government in which the citizens had only those rights that government chose to grant to them.  In the Colonial period, constitutionalism did not exist in effect, though many spoke of an “Ancient Constitution” that, among other things guaranteed “the rights of Englishmen.”  This was however an unenforceable hodgepodge of laws and customs, not a coherent, written document.

As a result, governance from England was exercised through the king and his colonial governors.  If the states were governed by their citizens they would be able to choose their own type of institutional structure and likely (as they did) directly participate in choosing many of the public officials.  The government would in a real sense be closer to the people.  Local conditions would be better known, as opposed to attempts to make policy from the mother country.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

[1]   See Second Treatise of Government (1690).

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M. Stanton Evans rightly complained against what he termed “the Liberal History Lesson”, the lie that Americans got our freedom by turning from Christianity.[1] That tale is supported by other fictitious claims, such as that the statesmen who gave us our independence, the U.S. Constitution, and the Bill of  Rights were Deists, rationalists, and skeptics who wanted to separate Christianity from politics and establish a “religiously neutral” or secularist political order over these United States.  None of that fits the evidence—when all the evidence is considered.  The pertinent evidence must be summarized,[2] but the evidence from our first states’ constitutions, declarations and/or bills of rights is sufficient to make the case.[3]

Christianity, overwhelmingly Protestant Christianity, was the religious commitment of the people of every state.[4]  Early American education—at all levels including college, in all colonies and areas of the colonies/states—was overwhelmingly Christian: before, during, and long after the “Revolution” and the “Founding Era.”[5]  Christianity was fundamental and dominant in early American law, legal thought, and legal education during and after this time.[6]  Christianity was much more influential on early American political thought than we have been told.[7]  Moreover, the framers and ratifiers of the Constitution created by representatives of the several states and ratified by the respective state legislatures or specially elected state ratification conventions were not Deists, skeptics, rationalists, or secularizers, but were overwhelmingly Christians.[8]

Two states retained their manifestly Christian colonial charters as their state constitutions: Connecticut until 1818, and Rhode Island until 1842.  New Hampshire and South Carolina created their constitutions in 1776, before the colonies’ Declaration of Independence, as temporary expedients in case no accommodation could be reached with England.  Virginia and New Jersey crafted their constitutions before the Declaration too, but as permanent governmental devices.  Pennsylvania, Maryland, Delaware, North Carolina, Georgia and New York framed their constitutions, declarations, and bills of rights after the Declaration but completed the process by early 1777.[9]  The Massachusetts Constitution of 1780 was the first to be created by a constitutional convention and approved by popular vote.  Thus, says McClellan, it was “the first written constitution resting on a thoroughly republican base, and in this respect set the standard for the Federal and State constitutions that were to follow.”[10]  Though they had important similarities, the states had different histories, religious and ethnic compositions (in religion, overwhelmingly among Christian denominations), social orders, economic interests, and internal politics.  They were thirteen peoples, not one.[11]

The new state constitutions, declarations and/or bills of rights created by the states were clearly Christian, though not flawless, and the people of each state learned from the fundamental laws created by the representatives of the peoples of other states, as well as from their own.  These documents were adaptations of the inherited forms, structures, and principles of the respective colonies’ governments and laws.[12]

Our states’ first fundamental laws featured Christian rhetoric, statements of God’s—and no other god’s—attributes and authority, including His providential, covenantal governance of history, and a Christian view of the Source and rightful content of law.

Concerning civil government, they set forth a covenantal, republican view that civil government must, under God, be based upon the consent of the governed.  Concerning man, the rulers and the ruled, they affirmed that he is created with certain unalienable God-given rights, but rejected notions that man is either “neutral” or naturally good.  They affirmed the unpleasant reality of Original Sin and designed their governments to protect liberty and justice against it.  Because they knew the fallen nature of man, they designed limited republics with written constitutions and bills of rights.  Those republics had both democratic and aristocratic features, designed to protect the majority and the minority against injustices.  They were not egalitarian, and sought to protect property by means of graded property qualifications for government offices.  To protect and promote godly laws and liberty, they had Christian qualifications for public office; in respect for Christians who believe that God forbids men to swear an “oath,” they let them make an “affirmation” instead.  To promote the benefits of education in all mental, practical, and geographical areas of a state, they encouraged the towns, precincts, and voluntary associations to promote Christian instruction.

Due to the states’ colonial heritage, some of them (Virginia, North Carolina, New York) had the Anglican, or Episcopal Church as the legally established church of the state.  In Connecticut and Massachusetts the Congregational Church was the de facto established church.  In South Carolina, New Jersey, and New Hampshire, Protestantism was the quasi-established not church but religion.[13]  In Delaware, Pennsylvania, Maryland, Georgia, and Rhode Island Christianity was quasi-established.[14]  When the states finally did away with their particular de jure or de facto established or quasi-established church, they were not motivated by rationalism, “neutrality” among all religions, or secularism, but by Christianity, Christian leadership, and a desire for religious liberty within the boundaries of Christian, or Biblical ethics (later including Jews).

Because they knew the fallen nature of man, they created systems of separation of powers with accompanying checks and balances among institutions to protect liberty and justice.  For the same reason, they stated the right of the people to resist tyranny.  And to protect their people against simplistic philosophies of freedom, they reminded them of the biblical connection between Christianity, virtue, and liberty: faith in God, obedience to His commandments, and God’s blessings upon the people of the state.  Such historical realities the “Liberal History Lesson” omits.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] M. Stanton Evans, The Theme Is Freedom; Religion, Politics, and the American Tradition (Washington, D.C.: Regnery Publishing, Inc., 1994), 3-21.

[2] Benjamin F. Morris, The Christian Life and Character of the Civil Institutions of the United States (Powder Springs, Georgia: American Vision, [1864] 2007), provides more than 800 pages of pertinent evidence about Christianity and the states in general.

[3] Morris, 267-292, deals with the state constitutions framed during the “Revolution.”

[4] For extensive evidence on this, see Morris, The Christian Life and Character of the Civil Institutions of the United States, 55-138.

[5] Archie Preston Jones, “Christianity in the Constitution: The Intended Meaning of the Religion Clauses of the First Amendment,” (Ph.D. dissertation, University of Dallas, 1991), 79-144.

[6] Jones, “Christianity in the Constitution,” 145-230.  See also John Eidsmoe, Historical and Theological Foundations of Law, 3 volumes (Powder Springs, Georgia: American Vision Press, Tolle Lege Press, 2011), especially Vol. I, pages 243-468, Vol. II, pages 582-620, 687-960, and all of Volume III.

[7] Since political sermons were often part of public affairs in early America before, during and after the War for Independence, see Ellis Sandoz, ed., Political Sermons of the American Founding Era, 1730-1805 (Indianapolis: Liberty Press, 1991).  Further evidence of the influence of Christian political thought on early America see Charles S. Hyneman and Donald S. Lutz, eds., American Political Writing during the Founding Era, 1760-1805 (Indianapolis: Liberty Press, 1983).

[8] M.E. Bradford, A Worthy Company; Brief Lives of the United States Constitution (Marlborough, New Hampshire: Plymouth Rock Foundation, 1982), and M.E. Bradford, Religion and the Framers: The Biographical Evidence (Marlborough, New Hampshire: Plymouth Rock Foundation, 1991).

[9] James McClellan, Liberty, Order and Justice; An Inrtoduction to the Constitutional Principles of American Government (Washington, D.C.: Center for Judicial Studies, 1989), 84-86.

[10]McClellan, 87.

[11] Abel P. Upshur, The Federal Government: Its True Nature and Character; Being a Review of Judge [Joseph] Story’s Commentaries on the Constitution of the United States (New York: Van Evrie, Horton & Co., 1868), Reprinted by St. Thomas Press, Houston, Texas, 1977, provides a 242-page, point-by-point refutation of Story’s unhappily influential work.

[12] On the colonial charters and states’ constitutions see Conrad Henry Moehlman, The American Constitutions and Religion; Religious References in the Charters of the Thirteen Colonies and the Constitutions of the Forty-eight States; A Sourcebook on Church and State in the United States (Berne, Indiana, 1938); Benjamin P. Poore, ed., Federal and State Constitutions, Colonial Charters and Other Organic Laws of the United States, 2 volumes (Washington, D.C.: Government Printing Office, [1877] 1888); and William J. Federer, The Original 13; A Documentary History of Religion in America’s first Thirteen States (St. Louis, Missouri: Amerisearch, Inc., 2014).

[13] That is, Protestants’ religious freedom was protected.

[14] That is, Christians’ religious freedom was protected.

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When John Jay, in Federalist No. 2, said he had often noted with pleasure that “Providence has been pleased to give this one connected country to one united people—a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms, and efforts, fighting side by side throughout a long and bloody war, have nobly established general liberty and independence,” he was half right.  He recognized that the peoples of the states that declared their independence in 1776 were overwhelmingly Christians and Protestants.  Yet he was certainly wrong about them being “one united people,” and about them having a purpose to establish “general liberty and independence,” for as the colonies’ Declaration makes clear, they fought to make each colony, under God, a free and independent state.

The Americans of those colonies had an overwhelmingly Christian background extending through English and Western history to the Old and New Testaments.[1]  Their theological background was dominantly Calvinistic, but with diverse expressions.  Of the 3,000,000 Americans in 1776 about

900,000 were of Scotch or Scotch-Irish origin, 600,000 were Puritan English, and 400,000 were German or Dutch Reformed.  In addition to this the Episcopalians had a Calvinistic confession in their Thirty-nine Articles; and many French Hugenots also came to this Western world.  Thus…about two-thirds of the colonial population had been trained in the school of Calvin.[2]

These colonies were the most thoroughly Protestant, Reformed, and Puritan commonwealths in the world.  Puritanism provided the moral and religious background of 75 percent of the people who declared their states’ independence in 1776.[3]  Ahlstrom says that “If one were to compute such a percentage on the basis of all the German, Swiss, French, Dutch, and Scottish people whose forebears bore the ‘stamp of Geneva’ in some broader sense, 85 or 90 percent would not be an extravagant estimate.”[4]

American culture when our early state constitutions were framed was clearly Protestant, with local variations in each state according to its ethnic, denominational and theological heritages.  Education, law, legal thought and legal education were overwhelmingly Protestant—before, during, and long after our first states framed their fundamental laws.[5]  These were deeply Christian, with theological presuppositions, philosophies, histories, and precedents reaching back through British and Western history and legal thought beyond the Reformation and the medieval period to the Bible.[6]

Although the peoples of the English colonies were basically one in their commitment to Christianity, the Christian basis of their ethical, political, and legal thought, and their desire to be free of England’s rule, they were not one but many in many other ways.  They were many in their theologies, ecclesiastical doctrines, and denominational affiliations.  Theologically, they were Calvinists and Arminians, Protestants and Roman Catholics.  Denominationally, they were Presbyterians, Congregationalists, Reformed, Episcopalians, Baptists, Methodists, Evangelicals, independents, Lutherans, German Reformed, Dutch Reformed, Hugenots, Quakers, Mennonites.  Most were from England, but some were from Scotland, Ireland, Northern Ireland (Scots Irish), France (Hugenots), the Netherlands (Dutch Reformed), or Germany (Reformed, Lutheran, Mennonite).  Though most were from England, they spoke different dialects.  As Phillips noted in The Cousins’ Wars, those who settled the various colonies were from different parts of England, had fought against each other in the English Civil War (1640s), and would, to some extent, fight against each other again in the colonies’ War for Independence, and later in our misnamed “Civil War”.[7]  As was obvious to the colonists, the New England colonies were heirs of the Puritans, quite different from colonists of the more diverse Middle Colonies, and even more different from the more traditional Anglican, Presbyterian and Baptist colonies of the South.

Nor were they one in their economic interests and endeavors.  Farming was dominant in every region.  But New England’s economy focused on mercantile activity, manufacturing, fishing, and whaling.  The Middle Colonies’ focus was on mercantile activity.  The South was dominated by agriculture and an agrarian philosophy.

The cultural difference between the people of the North, particularly New England, and of the South was deep.  Page characterized it as producing “(t)wo essentially diverse civilizations”,[8]  and eventually (1861-1865) our most destructive war.  The differences were religious, economic, cultural, and political.  Religiously, the South was more Anglican or low-church Episcopalian, Presbyterian, and traditional; the North, especially New England, was Puritan (Calvinistic Congregationalist).  Culturally, the South was individualistic, traditional, and conservative; the North was more community-centered, authority-centered, and church-centered.  The tyranny of the British king-in-Parliament, not cultural or political convergence, brought the two peoples together for their common defense.[9]

The colonies had different modes of government: in New England the township; in the South the county; in the Middle Colonies a mixture of the two.  The New England township was more overtly democratic than the Southern colonies’ governments, but had oligarchic aspects and exercised more power over the individual than Southerners would have tolerated.  Southern government was formally more aristocratic, yet substantively much more influenced by the “plain folk” than most historians admit.

The colonies had diverse histories.  Each section had been settled by somewhat different groups of people, from different places in England and Western Europe.  Though slavery existed in almost all the colonies, it was more successful in the South, so the Southern colonies had larger slave populations, and more diversity in that respect than the other two sections.  Peoples of the New England states had more in common with those of the Middle states than they did with the peoples of the Southern states. Moreover, each colony had its own unique history and regional and local differences within its borders.

The relations of the colonies to each other clearly indicate that they were not one people.  They were all under the authority of the British Empire, but each was connected to Britain by its own charter.  They were not bound only by laws of a common sovereign to them as a whole, for each had its own government.  They owed no reciprocal obligations to each other and had no common political interests or duties.[10]  As Upshur explains:

The people of one colony owed no allegiance to the government of any other colony, and were not bound by its laws.  The colonies had no common legislature, no common treasury, no common military power, no common judicatory….There was no prescribed form by which the colonies could act together, for any purpose whatever; they were not known as “one people” in any one function of government….even in the action of the parent country, in regard to them, they were recognized as separate and distinct.  They were established at different times, and each under an authority from the Crown, which applied to itself alone.  They were not even alike in their organization.  Some were provincial, some proprietary, and some charter governments.  Each derived its form of government from the particular instrument establishing it…, without any connection with, or relation to, any other.[11]

The nature and extent of the powers exercised by the Continental Congress did not make the people of all the colonies a “de facto nation” or “one people.”  That Congress was not a true civil government: it could only consult, deliberate, pass resolutions, and advise, not legislate.[12]

The Declaration of Independence did not “bring forth a new nation”; it brought forth thirteen new independent nations.  The Congress that produced that Declaration then acted only upon the authority of the consent and acquiescence of the several states—not upon any authority of a new nation consisting of all the people of the states as a collective entity.  It was then a de facto government that, in its ordinary business, relied on the belief that its actions would be approved and confirmed by their states.[13]

In no Continental Congress did the states’ representatives act as representatives of one people.  No wonder, for the standard estimate of the loyalties of the colonists is: one-third for independence, one-third against it, and one-third undecided.  Every recommendation to send representatives to a general Congress was addressed to the colonies as such, not to “the people.”  Each colony acted for itself in the choice of those deputies; none acted in the name of the whole “American people.”  The colonies after their Declaration acted as equals, not as areas having a certain percentage of the whole people of a “new nation.”[14]  However a state’s representatives were chosen, they were chosen in each particular state for itself alone, certainly not for any “nation.”

The Continental Congress exercised de facto a power of legislation in many cases, but never had that authority de jure by any grant of power from the colonies or from “the people” of “the nation.”  Congress’s acts only became valid by the states’ subsequent confirmation.  During the course of the war the people

“…never lost sight of the fact that they were citizens of separate colonies, and never, even implicitly, surrendered that character, or acknowledged a different allegiance.  In all the acts of Congress, reference was had to the colonies, and never to the people.  [Its] measures were adopted by the votes of the colonies as such, and not by the rule of mere numerical majority, which prevails in every legislative assembly of an entire nation.[15]

Acts of the “revolutionary government” were consistent with the independence and sovereignty of the states….  The Continental Congress did not have “exclusive” power to wage war; the independent states used their own sovereign authority to wage their war for independence.[16]

The people of the colonies were not one people before they joined to declare the independence of their states; uniting to form the Declaration did not make them “one people.”[17]  The Congress that declared their independence was appointed by each colony separately and distinctly.  They deliberated and voted as separate colonies—with only one vote per colony—not in proportion to each colony’s population, as they would have if their collective vote were intended to represent the will of the “national majority.”  They did not declare the independence of a new union, but of their thirteen respective states.[18]  The delegates signed the Declaration not as random individual representatives of the whole people of the states, but in groups according to their respective states.  Foreign countries, in treaties, recognized the distinct sovereignty of the states.[19]    

The states’ framing and ratification of the Articles of Confederation did not presuppose or create one people.  The Articles’ wording explicitly refutes such an idea: plainly announcing that “each State retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled.”[20]

Clearly, the states’ framing and ratification of the Constitution did not presuppose one people.  Providence gave this geographically united country to the divided peoples of thirteen separate states.  Their different colonial histories—in 1776, seven well more than a century, four more than a century, one, more than ninety years, and one, four decades—gave the people of each state a separate identity.

The Constitution did not create one people.  It was framed by representatives of the states, whose legislatures chose the delegates they sent to what turned out to be the Constitutional Convention: not by “the people” of the United States as a whole.  In Philadelphia each state had only one vote.  The states were not allotted votes on the basis of population.  They were represented as equals because they were equally free, independent states.  The Constitution was ratified by elected representatives of each individual state—the state’s legislature or specially elected ratification convention—not by a popular vote of the people of the state, much less by a national plebiscite.

Each state that ratified the Constitution acted on the basis of its own debates and its own representatives’ decision.  In doing so, each state’s representatives determined that the new Constitution and its federal government would not be a threat to its own particular Christian constitution, declaration or bill of rights, governmental system and laws.

The Christian theory of resistance to tyranny that the colonies followed in resisting the king-in-Parliament continued long after the framing and ratification of the Constitution of the United States (and its Bill of Rights).  At least six states—New Hampshire, Maryland, New Jersey, Pennsylvania, Virginia, and Massachusetts—stated this right explicitly in their fundamental laws, and thereby implied the right of the people to use all the legitimate means of resistance endorsed by that tradition.  Article IV of Maryland‘s Declaration of Rights (1776) phrased it pointedly: “The doctrine of non-resistance, against arbitrary power and oppression, is absurd, slavish, and destructive of the good and happiness of mankind.”  Where this doctrine was not stated, it was implicit in the constitutions and declarations of all of the states—which owed their existence to the exercise of precisely such a conviction.

At least three states—Virginia, New York, and Rhode Island—made it plain in their ratification documents that to defend their people’s inherited rights and liberty against central government injustice or tyranny they had the right to secede from the Union established by the Constitution, to take back the powers their people had delegated to the central government whenever it should become “necessary to their happiness.”  Some other states’ ratification documents made it clear that each state retains all powers it had not explicitly delegated to the central government, and that these powers remain with each state—as the Tenth Amendment, voicing a common concern of the people of each state, later made explicit.[21]  Unquestionably, in God’s providence, the peoples of the respective states intended to remain so.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] Russell Kirk, The Roots of American Order (LaSalle, Illinois: Open Court, 1974), 11-392.

[2] Loraine Boettner, The Reformed Doctrine of Predestination (Philadelphia: Presbyterian and Reformed Publishing Co., [1932] 1972), 382-383.

[3] Sydney E. Ahlstrom, A Religious History of the American People (Garden City, N.Y.: Doubleday and Co., Image Books, 1975), vol. 1, 169.

[4] Ahlstrom, 169.

[5] Archie P. Jones, “Christianity in the Constitution: The intended meaning of the religion clauses of the First Amendment ” (Ph.D. dissertation, University of Dallas, 1991), 79-144.

[6] Russsell Kirk, The Roots of American Order; Harold J. Berman, Law and Revolution; The Formation of the Western Legal Tradition (Cambridge: Harvard University Press, 1983); John Eidsmoe, Historical and Theological Foundation of Law, 3 vols., (Powder Springs, Georgia: American Vision Press, Tolle Lege Press, 2012); and Jones, “Christianity in the Constitution,” 145-230.

[7] Phillips has in mind the Puritans who settled New England and the Anglicans who settled the South.  Our War Between the States was not a “civil war” because it was not fought for control of the national government but over the right of a state to secede from the union established by the Constitution.

[8] Thomas Nelson Page, The Old South; Essays Social and Political (Chautauqua, New York: The Chautauqua Press, 1919), 259.

[9] Page, 260.

[10] Abel P. Upshur, The Federal Government: Its True Nature and Character; Being a Review of Judge Story’s Commentaries on the Constitution of the United States; With an Introduction and Copious Critical and Explanatory Notes by C. Chauncey Burr (New York: Van Evrie, Horton & Co., 1868).  [Reprinted by St. Thomas Press, Houston, Texas, 1977], 35.  Upshur’s 242-page point-by-point refutation of Joseph Story’s claim that the Constitution was intended to be based on the national majority will destroys the arguments of multitudes of Fourth of July orations, books, and lectures.  It should be required study for any analysis of the Constitution.

[11] Upshur, 36-37.

[12] Upshur, 44-50.

[13] Upshur, 57.

[14] Upshur, 58.  The states’ argument in their Declaration of Independence refutes the concept of a binding perpetual union, for the laws of nature and of nature’s God that the Declaration invokes as the standard by which one people is justified in terminating its relationship with another are prior in authority to all unions of peoples.

[15] Upshur, 61.

[16] Upshur, 64, 65.

[17] Upshur, 77, 78.

[18] Upshur, 79-81.

[19] Upshur, 90.

[20] Upshur, 94.  This is an obvious forerunner of, and is better worded than the Tenth Amendment.

[21] Archie P. Jones, The Gateway to Liberty: The Constitutional Power of the Tenth Amendment (Powder Springs, Georgia: American Vision Press, 2010), 47-53.

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Meaning of, and how early state constitutions allowed religious establishments regardless of the First Amendment

The first states, as we know, were originally colonies of Great Britain.  Even before that, some were not founded as British colonies, but independent endeavors.  Only later, after the “period of salutary neglect,” did they come under direct governance of the Crown.  From the beginning then, the American colonies, though they did have their own charters and compacts (early constitutions), also could and did have established religions—though many were also tolerant of other religious sects.

Several things must be noted regarding the early colonial and state constitutions in relation to the United States Constitution.  First the colonial and later state constitutions did allow for a single established church.  Some of these simply followed the Anglican Church model and others adopted a different church model.  But their respective constitutions did not pose any legal barriers to this.  Second, the United States Constitution in the First Amendment explicitly stated that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof….”  In the early years of the Republic that clause was applied only to the national government, leaving the states free to establish their own official churches.  Many did so.  But even those that did, tended to allow for different sects of Christianity—and even different non-Christian religions.  Massachusetts was the last state to abolish its established Christianity in 1833, before the First Amendment was applied by the United States Supreme Court to the states as well as the national government.

Throughout the “establishment period” (until 1833) the states allowed dissenting churches even though they mandated official churches supported by tax money.  It was not until 1947 in the Everson v. Board of Education, that the Supreme Court began to apply the Establishment Clause to the states.  At that point any established churches would be unconstitutional in the states.  Nevertheless, freedom of religion—toleration in effect—was already the custom of the states, and all had by then abolished established churches.

Marc A. Clauson is Professor of History, Law and Political Economy and Professor in Honors at Cedarville University. Marc holds a PhD from the University of the Orange Free State, SA, Intellectual History and Polity); JD (West Virginia University College of Law, Jurisprudence); MA, ThM (Liberty University, New Testament Studies and Church History); MA (Marshall University, Political Science); BS (Marshall University, Physics); and PhD work (West Virginia University, Economic Theory).

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Disestablishment in the remaining states did not depart from the substance or results of “disestablishment” in the previous states.

The South Carolina Constitution of 1778 was the most explicitly Christian and Protestant of our first states’ fundamental laws.  Its “religious” provisions were more unambiguous, detailed and lengthy than those of any other state.  This constitution is the best example of why secularist and “neutralist” accounts of religion and the Constitution seldom deal with the state constitutions, declarations, and bills of rights that were in force when our national Constitution and its First Amendment were framed and ratified.  Among many other things, the South Carolina Constitution declared the “Christian protestant religion” the state’s established religion.  It required a brief, definitely Christian confession of faith to be made by churches incorporated by the state.  It also contained an excellent “declaration” of duties to which ministers must subscribe (from the Anglican Book of Common Prayer).

Disestablishment in South Carolina came in 1778.  It was not the work of non-Christians.  It was mostly the work of the Rev. William Tennent, a Presbyterian minister among the predominantly Christian “dissenters” of the state’s interior.  The new constitution of 1778 omitted a provision for paying ministers from parish funds: making support of “religion” voluntary and equal before the law.  To promote religious liberty, the constitution extended corporate status to all Protestant religious societies that would affirm the fundamental Christian doctrines stated in the South Carolina Constitution.  Protestant churches were granted equal civil and religious privileges.  Tennent did not argue for “neutrality” among all religions, nor for the secularization of civil government and law, but for equal treatment before the law of every denomination of Christians.  He argued for liberty of conscience and judgment in “religious matters”—but did not divorce “conscience” from Christianity:

No legislature has a right to interfere with the judgment and conscience of men, in religious matters, if their opinions and practices do not injure the state….The State may give countenance to religion, by defending and protecting all denominations of Christians, who are inoffensive and useful.  The State may enact good laws for the punishment of vice, and the encouragement of virtue.  The State may do anything for the support of religion, without partiality to particular societies, or imposition upon the rights of private judgment.

He did not advocate reducing Christianity to equality with all other religions, nor anti-“religious” secularizing of civil government or law.

The South Carolina Constitution of 1790 provided for religious freedom “without distinction or preference,” which meant that Roman Catholics and other non-Protestant religious groups—of which there were very few—were granted equal religious freedom with Protestants.  Article VIII provided that “the liberty of conscience thereby declared shall not be so construed as to excuse acts of licentiousness or justify practices inconsistent with the peace or safety of this state.”

Disestablishment in South Carolina preceded disestablishment in Virginia:  It did not present Virginia legislators or the framers and ratifiers of the U.S. Constitution or the First Amendment with a model of either “religious neutrality” or secularism.

The New Jersey Constitution of 1776 reflected a long tradition of Christian liberty in worship.  Article XVIII had strong provisions against an established church and for liberty of conscience in worship.  The very next article (XVIV) made it clear that this was a Protestant constitution:

…no Protestant inhabitant of this Colony shall be denied the enjoyment of any civil right, merely on account of his religious principles; but that all persons, professing a belief in the faith of any Protestant sect, who shall demean themselves peaceably under the government,…shall be capable of being elected into any office of profit or trust…

Not until the New Jersey Constitution of 1844 (53 years after ratification of the First Amendment) were Roman Catholics allowed to hold office in New Jersey.

Since Delaware had long been part of Pennsylvania, it had a long tradition of religious toleration.  The colony’s first charter (1701) provided for liberty of conscience, but made it explicitly clear that Almighty God is the only Lord of conscience.  It also restricted public office to those who profess to “believe in Jesus Christ, the savior of the World…”

The Delaware Constitution of 1776, like its original charter, required a Trinitarian Christian oath of office.  Roman Catholics could hold office; non-Christians could not.  There was no religious qualification for voters, but officeholders had to “acknowledge the holy scriptures of the Old and New Testaments to be given by divine inspiration”.

The constitution prohibited the establishment of any one “religious sect” in preference to another: no Christian denomination was to be preferred to another by law.  It assumed that non-Christians would not be eligible for office.  Delaware’s 1776 Constitution was neither “neutral” nor secularist regarding “church and state” or religious freedom.

The new Delaware Constitution of 1792 stated that no religious test would be required as a qualification for any state office.  This neither secularized Delaware’s civil order nor made it absolutely “neutral” among all religions, for the constitution’s preamble stated that

Through divine goodness all men, have, by nature, the rights of worshipping and serving their Creator according to the dictates of their consciences…

This formulation was not “neutral” among all religions, for it excluded atheism, agnosticism, Satanism, and polytheism; nor was it consistent with Mohammedanism.

Section I of the Delaware constitution asserted the rights of conscience in religious worship, prohibited legal preference of any “religious societies, denominations, or modes of worship,” and prohibited the kinds of practices associated with an established church.  It also declared: “It is the duty of all men frequently to assemble together for the public worship of the Author of the universe, and piety and morality, on which the prosperity of communities depends, are thereby promoted…”  This referred to the covenant-making, covenant-keeping God of the Bible.  Hence it excluded, by implication, the worship of all false gods and all false religions from the legitimate protection of “the rights of worshipping and serving their Creator according to the dictates of their consciences.”

The provisions of the 1792 Delaware Constitution were intended to be consistent with the religious and moral doctrines of the Bible, but not to reduce Christianity (or Christianity and Judaism) to a level with all other religions and religious-ethical systems conceived by fallen man in a fallen world.  Approval of the religious actions of the false religions of the world would have nullified the covenantal protection of the prosperity of the community that the Delaware Constitution sought to continue through the worship of the Author of the universe and the piety and morality that He requires.

The Pennsylvania Constitution of 1776, one of the many manifestly Christian state fundamental laws created by our statesmen of the “Revolutionary” period, stated:

All men have a natural and unalienable right to worship Almighty God according to the dictates of their own consciences and understanding:  And that no man ought or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any ministry, contrary to, or against, his own free will and consent…

Like other early American fundamental laws with similar provisions, it did not state that all men have a natural and unalienable right to worship false gods, or many gods, or to worship them in immoral ways.  Nor did it level all religions down to a lowest common denominator.  The “natural and unalienable right to worship” was plainly linked to Almighty God, before whom members of the Pennsylvania House of Representatives had to swear this religious test oath:

I do believe in one God, the Creator and governor of the universe, the rewarder of the good and punisher of the wicked.  And I do acknowledge the Scriptures of the Old and New Testaments to be given by Divine inspiration.

This admitted Roman Catholics to full civil and religious rights, but excluded non-Christians.

Under pressure from the Jews of Philadelphia, the Pennsylvania Constitution of 1790 dropped the requirement that the divine inspiration of the New Testament be affirmed and all religious requirements for electors.  This was too late for it to have influenced the framing of the First Amendment.  It watered down previous provisions, but did not make Pennsylvania’s 1790 Constitution religiously “neutral” or secularist.  Pennsylvania officeholders still had to affirm the being of a God and a future state of rewards and punishments.  This requirement was maintained in the Pennsylvania constitutions of 1838 and 1873.

The Pennsylvania constitutions of 1790, 1838, and 1873 were neither “neutralist” nor secularist.  All recognized the being of God and preserved as fundamental law a 1700 statute penalizing anyone who would “willfully, premeditatedly, and despitefully blaspheme, or speak lightly or profanely of Almighty God, Christ Jesus, and the Holy Spirit, or the Scripture of Truth.”  Pennsylvania’s constitutions and laws protected Christianity until at least nine decades after the ratification of the First Amendment.

Maryland’s 1776 Constitution was definitely a Christian document.  Its Declaration of Rights ended the financial privileges of the Anglican Church, stipulated that a man would no longer be compelled to attend any particular place of worship, and prohibited an established church by forbidding legal compulsion to financially support a particular ministry.

These things were achieved by the work of the dissenting denominations: Protestants (mainly Presbyterians) and Roman Catholics—and the work of outstanding individuals like Roman Catholics Charles Carroll and John Carroll.  They were not the work of rationalists, Deists, or Unitarians, much less of secularists or advocates of “neutrality” among all religions.

The Maryland Bill of Rights and Constitution were not intended to “neutralize” or secularize the relationship between church and state.  They did not abandon Christian ethical standards regarding religious freedom.  The Maryland Declaration of Rights of 1776 allowed only “persons professing the Christian religion” to exercise religious freedom.  A 1781 law required public officials to subscribe to a declaration of belief in the Christian religion.  Not until 1826—35 years after ratification of the First Amendment—were Maryland Jews allowed to hold public office.  Despite their provisions against the establishment of a state church, the Maryland Declaration and Constitution of 1776 could not have been examples for a “neutral” or a secularist First Amendment.

Georgia’s colonial charter granted the free exercise of religion or freedom of conscience to “everyone except papists,” but its 1777 Constitution removed the restriction on Roman Catholics’ religious liberties.

The 1777 Constitution also stated that no one had to support a religious teacher not of his own religious profession: so Christians had to support their church’s or denomination’s pastors.  Like some other states that sought to prevent the establishment of one denomination in a position of superiority in the state, Georgia’s 1777 constitution stipulated that no clergyman of any denomination would be allowed to serve in the legislature.  These provisions were intended to be consistent with the fundamental Protestant Christianity of the document—which required members of the legislature to be “of the Protestant religion.”

Georgia’s new constitution of 1789 dropped the religious test for office, provided that there would be no legal infringement on a man’s civil rights because of his religious principles, and established the free exercise of religion for all persons.  No one would be required to support any religious profession but his own.  This did not create absolute “neutrality” among all religions or secularization of Georgia’s civil life: the state retained its Common Law foundation and its laws enforcing Christian morality.

The 1798 Georgia Constitution clarified the meaning of the free exercise of religion, stating that: “No one religious society shall ever be established in this state, in preference to another; nor shall any person be denied the enjoyment of any civil right merely on account of his religious principles.”

Neither the 1789 nor the 1798 Georgia constitution can be used to argue for a “neutral” or a secularist First Amendment: because neither was really religiously “neutral” or secularist.  And because Georgia did not ratify the First Amendment.

Rhode Island used its colonial charter as its state constitution until 1842.  Its charter established principles favorable to religious liberty and unfavorable to an established church, providing for the “free exercise and enjoyment” of the subjects’ “civil and religious rights.”

Roger Williams, the founder of Rhode Island, was the main influence on the charter.  His intentions were certainly Christian.  The original charter was brimming with Christian rhetoric and principles.  A fundamental purpose of the charter was “enjoyment of all their civil and religious rights”.  So was “that liberty, the true Christian faith and worship of God…”  The charter also stated—as would many of the newly independent state constitutions, declarations, and bills of rights—that this liberty was not to be used “to licentiousness and profaneness, nor to the civil injury or outward disturbance of others.”

Rhode Island residents were made into a body politic to be “in the better capacity to defend themselves, in their just rights and liberties, against all the enemies of the Christian faith…”  This was Rhode Island’s fundamental law until 1842: over 50 years after ratification of the First Amendment.  It is misleading for secularizers to define an “establishment of religion” as any governmental support of “religion,” and to cite Rhode Island as an example of a state “which never had an establishment and opposed every sort of one,” for Rhode Island was definitely neither secularist nor “neutral” toward Christianity.

The evidence from the states previously surveyed as well as from these remaining states is clear and compelling.  At the time of the Declaration of Independence:

  1. Our first thirteen states all had clearly and unmistakably Christian fundamental laws in their colonial charters (Connecticut and Rhode Island), or state constitutions, declarations of rights, and bills of rights (all the rest).
  2. One state, Rhode Island, had liberty of conscience within a Christian setting.
  3. Four states had a single denomination as the state’s established church: In Virginia, North Carolina, and New York the Anglican Church; in Connecticut the Congregational Church.
  4. Eight states had a quasi-established church, an establishment of Protestantism, or of Christianity: Massachusetts (Congregational Church), New Hampshire (Protestantism), South Carolina (Protestantism), New Jersey (Protestantism), Delaware (Christianity), Pennsylvania (Christianity), Maryland (Christianity), Georgia (Protestantism).

At the time of the framing and ratification of the U.S. Constitution (1787-1789), and of the Bill of Rights and the First Amendment (1789-1791):

  1. Two states (Rhode Island and Virginia) had full “religious freedom”—without separating Christianity from their laws.
  2. One state (New York) had “full religious freedom”—with two exceptions: a Protestant test oath for office (until 1806), and a requirement that all naturalized citizens renounce allegiance and subjection to all foreign princes and potentates in ecclesiastical and civil matters.
  3. The other 10 states were either Christian or Protestant establishment (or quasi-establishment) states with religious freedom bounded by Christian morality.

Regarding “disestablishment” and religious liberty:

  1. In NO state—including Virginia—was disestablishment a result of the leadership and work of non-Christians, or a significant number of non-Christians.
  2. In every state it was overwhelmingly the leadership and work of Christians: mainly of the “dissenting” denominations and churches, chiefly Baptists, Presbyterians, and other Protestants.
  3. Some tolerant members of the established church or denomination supported disestablishment: Anglicans/Episcopalians like Madison and Jefferson in Virginia; and Orthodox Congregationalists in Massachusetts—where Unitarians had taken over many Congregational churches from within.
  4. The arguments in the various states’ struggles for disestablishment of a state’s established, or quasi-established church, were conducted as arguments between Christians, not as disputes between Christians and pagans, rationalists, agnostics or atheists.
  5. In NO state was “disestablishment” intended to produce, or did it produce “neutrality” among all religions, de-Christianization or secularism.
  6. Christianity remained fundamental to the laws and practices of each state.
  7. “Disestablishment” in the states was not a precursor of a “religiously neutral” or a secularist First Amendment.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

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“Disestablishment” and “religious freedom” in North Carolina, New York, Connecticut, Massachusetts, and New Hampshire were motivated by different intentions than we have long been taught.

North Carolina had an Anglican establishment before independence and a non-Anglican majority that disliked the Anglican Church.  Dissenters were excluded from all offices of power and dignity and had to pay tithes to the Anglican Church.  Independence and the new constitution of 1776 changed this by precluding the existence of any established church and establishing a Protestant civil government.  Article XXXII declared:

That no person, who shall deny the being of God or the truth of the Protestant religion, or the divine authority either of the Old or New Testaments, or who shall hold religious principles incompatible with the freedom and safety of the State, shall be capable of holding any office or place of trust or profit in the civil department within this State.

Article XXXI prohibited any clergyman from holding any office in the Senate, House of Commons, or Council of State while he continued to be a pastor.  So the North Carolina Constitution provided for the disestablishment of any one Christian denomination and the establishment of Christianity as fundamental to the law of the state.

North Carolina achieved disestablishment without the aid of any non-Christians, rationalists, or Deists—because there was a balance among the various Protestant denominations, and most “dissenting” Protestants disliked the Anglican Established Church.  Scotch-Irish Presbyterians—no rationalists they!—led in the battle for disestablishment and religious liberty.

North Carolina was a clearly Protestant state until at least 1835, when it provided religious liberty for Roman Catholics, and then in 1868, when, still a Christian state, it removed religious and civil disabilities from Jews.

New York’s 1777 Constitution, the third main victory for disestablishment of the Anglican Church, provided for “free exercise and enjoyment of religious profession and worship.”  But it stated that “the liberty of conscience, hereby granted, shall not be so construed as to excuse acts of licentiousness, or justify practices inconsistent with the peace or safety of this State.”

New York’s constitution excluded all ministers of the Gospel from office—because of the great importance of their duties as ministers, not on anti-clerical, religiously “neutral” or secularist grounds.  It also abolished all parts of the Common Law and colonial statutes that might be construed as establishing “any particular denomination of Christians or their ministers.”  It did not do away with the Common Law as such—with its many Christian principles and rights—so Christianity remained fundamental to the laws of New York.

In 1784 New York abolished the remaining legal privileges of the Anglican Church.  It also passed a law to restrict the political power of Roman Catholics:  requiring all persons naturalized by the state to take an oath renouncing all foreign allegiance and subjection in both civil and ecclesiastical matters.  This test oath was not repealed until 1806.

Disestablishment in New York was achieved by Christians who wanted religious and civil liberty without abandoning Christianity.

Connecticut did not achieve disestablishment and religious freedom until 1818—for until that year the colonial charter served as the state’s constitution, and the Congregational Church remained established until the new Constitution of 1818.  Disestablishment was the will of the ministers, prominent laymen, and ordinary church members.  When it did come, it was supported by tolerant Congregationalists, Baptists, Methodists, most Episcopalians, Quakers, and a tiny minority of the Unitarians and Universalists.  Most rationalists in Connecticut (Unitarians and Universalists) were on the side of the establishment, not disestablishment—reversing the supposed order of “separation of church and state” mythology.

The Connecticut Constitution, in the clause after it established freedom of religious profession and worship for all persons in the state, stated that this right “shall not be construed as to excuse acts of licentiousness or justify practices inconsistent with the peace and safety of the State.”  So much for the freedom of all religions!  The next section said “no preference shall be given by law to any Christian sect or mode of worship,” which meant that Christianity was virtually recognized as the state’s belief.  Its article on religion—drafted by a subcommittee of “Jeffersonian Republicans”—made it clear that even with “separation of church and state” this was a Christian constitution.  It referred to God as “the Supreme Being, the Great Creator and Preserver of the universe,” and said that “every society or denomination of Christians in this State, shall have and enjoy the same and equal powers, rights and privileges….”

Disestablishment in Connecticut was won by various denominations of “dissenting” Christians, with little help from non-Christians.  It was partly motivated by Christians’ desire to be free of domination by an established church that had been infiltrated by the false doctrines of Unitarianism.

Massachusetts had the most protracted conflict over disestablishment of any state.  As early as the middle of the 18th century, “Strict Congregational” churches joined Baptists in opposing the established Congregational churches, for they considered many members of the established church to be unconverted and did not want to pay taxes to support such a church.

The War for Independence did not bring a drive for “neutrality” among religions or for secularism.  As Stokes says, the new government’s constitution had “resonant and high sounding clauses concerning the sanctity of religion and liberty, immediately followed by others denying religious liberty in any adequate sense to many creeds and sects.”[1]  That is because they drew intellectual and moral distinctions that Stokes did not, because they knew some things about the world’s religions’ practices that he should have known.  The new state Constitution of 1780’s Declaration of Rights stated the duty of all men to worship God, “the SUPREME BEING, the Great Creator and preserver of the universe”—not any other gods.   It stated the right and principle of individual liberty of conscience in worship and religious beliefs, but qualified this by requiring that the individual not disturb the public peace or others’ religious worship.  The framers of the Massachusetts Constitution were rightly concerned to protect religious worship and the public peace; and to protect their people’s lives, liberty, persons and property against such religious practices as human sacrifice, cannibalism, infanticide, and “holy wars.”

Article III made it clear that “liberty of conscience” was not merely individualistic:

III.  As the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality; and as these cannot be generally diffused through a community but by the institution of the public worship of God, and of public instructions in piety, religion, and morality:  Therefore, to promote their happiness, and to secure the good order and preservation of their government, the people of this commonwealth have a right to invest their legislature with power to authorize and require and the legislature shall, from time to time, authorize and require, the several towns, parishes, precincts, and other bodies politic, or religious societies, to make suitable provision, at their own expense, for the institution of the public worship of GOD, and for the support and maintenance of public Protestant teachers of piety, religion, and morality, in all cases where such provision shall not be made voluntarily.

This article also affirmed the legislature’s authority to require all subjects to attend the teachings of these Protestant ministers, if they could conscientiously do so.  It stated the equality of all Christian—but no non-Christian—denominations before the law:

And every denomination of Christians, demeaning themselves peaceably, and as good subjects of the commonwealth, shall be equally under the protection of the law; and no subordination of any one sect or denomination to another shall ever be established by law.

This article was not modified for 53 years (1833)—more than 40 years after the addition of the First Amendment to the U.S. Constitution.

As in Connecticut, the established Congregational Church in Massachusetts was weakened by the growth of rationalism within, and a division between the theologically orthodox and those who would later call themselves Unitarians.  An 1818 legal decision said that the Unitarian “society” that owned a church, not the Christian majority of the members of that church, could control that church.  This gave the Unitarians a great advantage and weakened the Congregational Church, but provided an opportunity for the growth of disestablishment thought, since orthodox Christians would not want to be legally subordinate to a church in the hands of apostates.

Not until 1831 did the legislature vote for disestablishment—but then it did so decisively.  In 1833 the state’s citizens voted nearly 3:1 to remove Article III from the state constitution and add an article favoring the equality of “all religious sects and denominations demeaning themselves peaceably, and as good citizens of the commonwealth…”

The growth of Unitarianism contributed to disestablishment, but disestablishment in Massachusetts was not produced by Unitarians or rationalists.  It was a result of the growth and work of the dissenting Christian denominations, especially the Baptists.  Episcopalians, since their church was not the established church, supported disestablishment, as did other dissenting denominations.  Probably many orthodox Congregationalists, persuaded by Baptists’ “liberty of conscience” arguments and not wanting to give the growing Unitarian faction in Congregational Churches the privileges of an established church, supported disestablishment.

Once again, disestablishment and religious liberty were the work of Christians, not of non-Christians.

New Hampshire’s 1778 Constitution’s Bill of Rights was clearly a Protestant document.  It stated that the “rights of conscience” are unalienable, and supported the individual’s right of liberty of conscience in worship and belief.  Its sixth article said the best security to government is “morality and piety, rightly grounded on evangelical principles”, and “evangelical” meant Protestant Christian.  It called for towns, parishes, and religious societies to “make adequate provision, at their own expense, for the support and maintenance of public protestant teachers of piety, religion and morality.”  It stated that “every denomination of Christians, demeaning themselves quietly, and as good subjects of the state, shall be equally under the protection of the law…”

Its Form of Government required every representative in the legislature to be “of the protestant religion,” and stated that one who left the Protestant religion would automatically cease to be a representative of his town or district.  Not until 1852—more than six decades after the ratification of the U.S. Constitution’s First Amendment—was the required two-thirds popular vote to repeal the Christian religious test oath approved.

The state’s constitutions of 1778 and 1792 did not support an established church, but by providing for local laws to support religion in effect established Protestantism.  New Hampshire continued to favor Protestantism in particular and Christianity in general for more than a century and a half after the First Amendment had been ratified.

As is evident from the states we have examined, state governments’ support of Christianity long after the addition of the First Amendment, Stokes’s comment that New Hampshire’s retention of these provisions is “inconsistent with the American tradition of impartiality of the State in matters involving the religious convictions of citizens”[2]  is without foundation in fact and foolish.

It is without foundation in fact because the evidence of American “church and state” relations throughout the era of “disestablishment” clearly indicates that the states have not been “impartial” in regard to religion or the “religious convictions” of citizens—and by the manifest intentions of their constitutions and laws should not have been so.  Neither the states’ “disestablishments” nor the First Amendment set up “impartiality” as the standard for our civil governments’ relationships to “religion” or to Christianity.  If there was any “impartiality,” it was meant to operate only among Christian denominations, or among religions whose ethics or exercise of religion did not include actions that violate others’ rights.  At most, it was impartiality among Christian denominations, with tolerance of other religions that at least conformed to Christian ethics.

It is foolish because impartiality or neutrality among religions is impossible:  Religions differ radically in their theological and ethical doctrines and requirements.  To be impartial or neutral among conflicting doctrines and requirements is to abandon logic.  It is also to commit the government to permitting adherents of disparate religions to violate others’ rights to life, liberty, person, and property.

“Impartiality” among all religions at first glance appears “understanding,” and “tolerant,” but upon closer inspection it is seen to be ignorance, amorality, and a lack of concern for others’ wellbeing.  “Impartiality” or “neutrality” neglects the horrific consequences of the free exercise of many religions that differ from Christian ethics.  Thank God we did not have a tradition of “impartiality” toward all religions!

Clearly, not only in Virginia, but also in North Carolina, New York, Connecticut, Massachusetts, and New Hampshire disestablishment and religious liberty were not the results—in any state—of popular intentions to live under “religiously neutral,” secularist, or de-Christianized civil government and laws.  In every state disestablishment and religious liberty were the results of Christian leadership and overwhelming support by diverse denominations of Christians, and in no state was “religious neutrality”, secularism, or de-Christianization a result of disestablishment.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] Anson Phelps Stokes, Church and State in the United States. 3 vols. (New York: Harper and Brothers, 1950), vol I, p. 423.

[2] Stokes, Vol. I, 432.

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We have long been told that the American “Founding” was a product of rationalism and of secularist political thought; that the states’ struggles for “disestablishment” and “religious freedom” were driven by a desire for “neutrality” among all religions, or for secularism; and that the states’ religiously “neutral” or secularist “disestablishment” and “religious freedom” were precursors of a religiously “neutral” or secularist First Amendment to our federal Constitution.  Advocates who use the Constitution’s First Amendment to establish “neutrality” among all religions, or secularism, have long used the battle for disestablishment of the Anglican Church in Virginia to advance their objective.

None of their arguments fit the evidence.  Let us consider the evidence of “disestablishment” in Virginia.

Virginia was the most famous victory for disestablishment of the Anglican Church.  The leaders of the debates in the Virginia legislature—Thomas Jefferson, James Madison, George Mason, and Patrick Henry—were all professing Christians: all Anglicans at that time.  Jefferson was still orthodox, financially supported several Christian ministries, and would not develop significant doubts about the Christian faith for a few decades.  When he did develop such doubts, he kept them secret: telling the recipients of such letters to keep their contents secret or not sending the letter.  Madison and Mason were orthodox.  Henry, the most influential man in the state, was a zealous Calvinist.

The main background of the struggle did not consist of any significant increase of rationalism (Deism, Unitarianism) or non-Christian thought, but of opposition to the spiritual laxity of the Anglican clergy by the numerous Baptists and Presbyterians, many Anglican laymen, and Methodists.  And of opposition to Anglican Church persecution of Baptists, Presbyterians, Methodists, Lutherans, and members of other “dissenting sects.”  Many Anglicans, like Madison, opposed this persecution.  Furthermore, the Anglican vestries wanted to rule their own churches, not to remain under the authority of the English church hierarchy.

The famous Rev. John Leland led the Baptists, and the Rev. Samuel Davies led the Presbyterians in the struggle for religious liberty.

Jefferson’s famous Act Establishing Religious Freedom opposed compulsory taxation of non-Anglicans to support things they didn’t believe.  Its ideas and rhetoric were clearly Christian, not rationalistic, nor religiously “neutral.”  Far from beginning the movement for disestablishment of the Anglican Church, Jefferson’s famous Act was a product of it.  Though Jefferson wrote it in 1777, it was not passed until 1786, under Madison’s, not Jefferson’s leadership.  At the time of his writing the act and his work for disestablishment, Jefferson was a professing Christian, not a closet Unitarian, nor a rationalist.  Jefferson’s religious views changed as he got older.  He was an orthodox Christian in at least the first half of his adult years—when he wrote the first draft of the Declaration of Independence (1776), served in the Virginia legislature, served as governor, and served as President (1800-1808).  The last decade or so of his life (ca. 1813-1826) he was a closet Unitarian.[1]  He was not a rationalist during Virginia’s struggle for disestablishment of the Anglican Church and for “religious liberty.”

Madison’s Memorial and Remonstrance Against Religious Assessments (1784) used Christian rhetoric and changed the Virginia public’s views from state support of “religion”—Christianity—through financial aid.  It was much more influential than Jefferson’s Act Establishing Religious Freedom.  That plus the removal of Patrick Henry, the most popular man in the state, its greatest orator, and the great advocate of state aid to Christianity—certainly not to “religion” in general—from the legislature by his being elected governor, enabled the bill to pass.

Anglicans were a distinct minority in the state, but were two-thirds of the legislature.  Most Anglicans in the legislature had been convinced by Christian writers that all churches should be equal before the law.  The dissenting ministers cleared the way for disestablishment.  The legislators who voted for disestablishment were mostly members of the Established Church.  The bill was not enacted to make Virginia law either “neutral” among all religions or secularist—and in fact did not do so.

Stokes credits Jefferson’s statement, in his 1821 Autobiography, that during the debate on his bill the “great majority” of Virginia legislators rejected a proposed amendment to the bill adding the name of Christ, so that it should read, “a departure from the plan of Jesus Christ, the holy author of our religion,” and that this proves that they wanted to include protection for the free exercise of every religion—including “the Mahometan, the Hindoo, and the infidel of every denomination.”[2]  For several reasons, this is difficult to believe:  First, This would have given legal protection to such contradictions of Virginia laws, the Christian Common Law, and Christian morality as the Mohammedan harem, “honor killings,” and jihads against unbelievers in that religion; the Hindu sutee (immolation of the wife on her husband’s funeral pyre), caste system, and parents’ right to murder their children, especially newborn daughters, via child sacrifice.[3]  Not to mention other pagan religions’ orgies, human sacrifice and cannibalism.

Second, this would have been contradicted by Article 16 of the Virginia Bill of Rights’ statement that Virginians should practice “Christian forbearance, love, and charity towards each other.”  That placed Christian ethics in a position of superiority to those of all other religions: an obvious contradiction to the idea that all religions are equal.  To have accepted the old Jefferson’s remembrance of Virginia’s legislators’ intentions, Stokes would have to have believed that most of Virginia’s legislators were ignoramuses or thoughtless, or that they were carried away by the passion of the moment.  But Virginia’s legislators were not ignorant, nor were they intellectual or moral dunces.

Third, all churches in Virginia were not on the same legal basis until 1787, a year after approval of Jefferson’s bill, when the special law incorporating the Episcopal Church was repealed.  Not until 1802—17 years after Jefferson’s bill—did the Virginia Assembly remove control of the glebe lands from the Episcopal Church.  Not until 1840—54 years after Jefferson’s bill—did a state Court of Appeals decision finally sustain the 1802 act and make “separation of church and state” complete in Virginia.

Fourth, Jefferson’s Bill for Establishing Religious Freedom did establish religious freedom  in Virginia when it was enacted (1786), but it did not remove all state support for the Anglican Church.  And it was not intended to make Virginia’s laws “neutral” among all religions (a logical impossibility, for religions have contradictory beliefs and practices), or secular (separated from all religions’ influence), or to de-Christianize Virginia’s laws:  far from it!  Jefferson’s famous Bill, #82 was part of a set of bills concerning religion apparently framed by Jefferson and approved by the committee he chaired in the Virginia General Assembly.  Bill #83 was “…for Saving the Property of the Church Heretofore by Law Established” (the Church of England).  Bill #84 was “…for Punishing Disturbers of Religious Worship and Sabbath Breakers”.  Bill #85 was “…for Appointing Days of Public Fasting and Thanksgiving”.  Bill #86 was “…for Annulling Marriages Prohibited by the Levitical Law” (the law of God revealed in the Old Testament book of Leviticus).  This package of bills—and their enactment—make it very clear that neither Jefferson nor the Virginia legislature was trying to make Virginia laws “neutral” among all religions, or secular, much less de-Christianized.

“Disestablishment” in Virginia was only removal of all legal preference for the Episcopal Church.  It was not fully achieved until 1840—54 years after Jefferson’s bill.  It was accomplished—overwhelmingly—by the efforts of Christians, particularly of the former “dissenting sects.”  It obviously was not intended to create, and did not produce “neutrality” among all religions, secularism, or de-Christianization.  It therefore is not, and cannot be either a precedent or evidence for “neutrality” among all religions, secularism, or de-Christianization of American law.

Archie P. Jones, Ph.D., Teacher, Librarian, Author of The Gateway to Liberty: The Constitutional Power of the Tenth Amendment

[1] The development of Jefferson’s religious thought is carefully set forth in Mark A. Beliles and Jerry Newcombe, Doubting Thomas?; The Religious Life and Legacy of Thomas Jefferson (New York: Morgan James Publishing, 2015), 13-184.

[2] The full quotation is given in Beliles and Newcome, 222.

[3] George Grant and Gregory Wilbur, The Christian Almanac; A Book of Days Celebrating History’s Most Significant People and Events, Second Edition (Nashville, Tennessee: Cumberland House, 2004), 541.

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In June 1776, George Mason wrote the Virginia Declaration of Rights. It declared natural rights, the essential liberties of the people, and republican government by consent of the people. The delegates to the Fifth Virginia Convention—the government after the royal governor had fled from Williamsburg—voted to accept the Declaration of Rights and a state constitution rooted upon revolutionary principles of rights and popular government.

When writing about religious liberties in the Declaration of Rights, Mason, influenced by the ideas of John Locke’s Letter Concerning Toleration, wrote, “All men should enjoy the fullest toleration in the exercise of religion according to the dictates of conscience.” This principle of religious toleration seemed liberal-minded during the time of the Enlightenment, or age of reason.

A young James Madison disagreed and offered an amendment that fundamentally altered the principle of toleration to a new and revolutionary one—religious liberty. The Declaration of Rights read: “All men are equally entitled to the free exercise of religion, according to the dictates of conscience.”

Madison’s fellow delegates accepted that freedom of religion was an inalienable right (and a duty to God), but they were unwilling to accept that Madison’s amendment disestablished the official Anglican Church as part of the constitution-making. Nevertheless, Baptists, Presbyterians, and Lutherans began flooding the House of Delegates with petitions calling for disestablishment. The legislature responded to the demands of their constituents, relieving dissenters of paying taxes for the support of the Anglican Church.

In early 1777, Thomas Jefferson joined the cause of religious liberty in Virginia. Jefferson believed that the Virginia constitution had a variety of shortcomings and won appointment to the committee to revise the state laws with George Wythe and Edmund Pendleton. Jefferson’s object was to eradicate “every fiber…of ancient or future aristocracy.”

As an Enlightenment thinker, Jefferson believed that religion was a matter of reason and equated religious liberty with a free mind. Jefferson penned a bill for disestablishment in 1777 but did not present it to the legislature. Jefferson’s Bill for Establishing Religious Freedom was introduced in the House of Delegates in June 1779.

The preamble asserted that “Almighty God hath created the mind free,” and thus was free from restraint by the civil government. The bill would enact disestablishment as Jefferson affirmed, “The opinions of man are not the object of civil government.”

The bill, however, was soundly defeated. Many Virginia founders including Patrick Henry, Richard Henry Lee, John Marshall, Pendleton, and initially, George Washington, supported a general assessment, or tax money, to be allocated to a denomination of a person’s choice or to schools and education rather than religion. They argued that republican government depended on the virtue of the citizenry and leaders, and that virtue was primarily encouraged by religion. The general assessment bill did not establish a particular denomination or even Christianity broadly as the state religion, but rather sought to support religion to inculcate virtue for republican self-government. The House passed a resolution for the bill in 1784, and Henry chaired the committee to draft it.

Jefferson and Madison (neither of whom was especially known for his piety) formed an improbable alliance with an array of dissenting religious groups including Baptists, Methodists, Quakers, and Presbyterians to fight the general assessment. Both sides of the debate wrote petitions to the House to influence the outcome.

Madison weighed in on the debate, anonymously writing the highly influential “Memorial and Remonstrance Against Religious Assessments.” He wrote: “The religion then of every man must be left to the conviction and conscience of every man; and it is the right of every man to exercise it as these may dictate. This right is in its nature an unalienable right.”

The Virginia Statute for Religious Freedom passed into law on January 6, 1786. The Assembly enacted the idea into law that:

No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever, nor shall be enforced, restrained, molested, or burdened in his body or goods, nor shall otherwise suffer, on account of his religious opinions or beliefs….We are free to declare, and do declare, that the rights hereby asserted are of the natural rights of mankind.

Jefferson and the legislature then made the law and the principle of religious liberty a fundamental right that could never be revoked by a future legislature, binding future generations to the rights of man. “If any act shall be hereafter passed to repeal the present or to narrow its operation, such act will be an infringement of natural right.”

Most states pursued religious liberty as a fundamental right and disestablished their churches, though not all did, because of principle of federalism in the U.S. Constitution. In the 1830s, Massachusetts became the last state to disestablish. But, the American Revolution and founding advanced both civil and religious liberty for the American people.

Tony Williams is a Constituting America Fellow and a Senior Teaching Fellow at the Bill of Rights Institute. He is the author of six books including the newly-published Hamilton: An American Biography.

 

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At the time of the Revolution, Americans had shown that established churches could co-exist with free exercise of religious conscience. Still, religious restrictions on holding office, requirements to attend some religious service and financial support of the colony’s official church through taxes remained. Of those, as might be expected, the last was the most reviled by the public and, thereby, most easily attacked by willing politicians. It is on that ground that disestablishment of most colonial churches was initiated during the Revolutionary and Early Republican periods.

The Southern colonies, especially, moved to disestablish the official status of the Anglican Episcopal Church. North Carolina began the process in 1776, followed during the war by New York, Maryland, and South Carolina. There also began a decade-long struggle in Virginia towards that end. The Virginia constitution of 1776 declared, “THAT religion, or the duty which we owe to our Creator, and the manner of discharging it, can be directed only by reason and conviction, not by force or violence, and therefore all men are equally entitled to the free exercise of religion, according to the dictates of conscience ….” Thus was protected free exercise, but the established church yet survived. After the war, demands increased to disestablish the Episcopal Church, tainted by its connection to the Church of England. In 1784, the popular governor, Patrick Henry, proposed his “Bill Establishing a Provision for Teachers of the Christian Religion.” This would have protected de facto the preferred position of the Episcopal Church even if formal disestablishment were to occur, because it had the majority of pastors. Madison helped defeat the bill with his “Memorial and Remonstrance against Religious Assessments” when it came up for a vote in 1785. Madison was motivated in part by what he perceived as continuing persecution of religious dissent, despite the state constitution’s high-sounding declaration. He fulminated in 1784, “That diabolical, Hell conceived principle of persecution rages among some and, to their eternal infamy, the clergy can furnish their quota of imps for such business.” Finally, on January 16, 1786, the legislature adopted Jefferson’s Statute of Religious Liberty, to disestablish fully the Episcopal Church.

On the other hand, the deeply engrained theocratic tradition in New England prevented complete disestablishment of the Congregational Church. The Massachusetts Constitution of 1780 had a strongly pious Preamble, and in Article II of its Declaration of Rights asserted not only the right, but the duty, of everyone “publickly, and at stated seasons, to worship the SUPREME BEING, the Great Creator and Preserver of the Universe.” To be sure, no one would be punished for worshipping God according to the dictates of his conscience. But worship, one must. Article III emphasized the classic republican connection among good government, religion, and morality. This connection could only be maintained by the “publick worship of God, and…publick instructions in piety, religion and morality.” Accordingly, the legislature was directed to require the “towns…and other bodies politick, or religious societies” to provide financial support for such public worship and for “the support and maintenance of publick protestant teachers of piety, religion and morality.” Moreover, the people, acting through their legislature, could compel attendance at these services.

These blunt commands were softened by allowing those paying the support to direct that the funds go to a religious teacher of their own denomination whose services the taxpayer attended. If there was none, the funds went to the support of teachers the parish selected. Most likely, those selected would belong to the Congregational Church, in light of its dominance among the populace. As well, the same article prohibited the formal legal subordination of one denomination to another. This partial disestablishment of the Congregational Church was largely undermined by the support provision. Adherence to proper religious doctrine was also enforced for state officials through their declaration before taking office that they “believe the christian [sic] religion, and have a firm persuasion of its truth.”

By the time the Constitution was adopted, most states had fully disestablished their churches, though Massachusetts, Connecticut, New Hampshire, Maryland, and North Carolina retained some provision for mandatory taxation for the religion of one’s choosing. At the state ratifying conventions, many delegates had expressed fear that Congress might establish a national religion. The first Congress in 1789 debated a proposed Bill of Rights. Madison included a provision that no one’s rights should be abridged by Congress on account of religion, and that no national religion shall be established. The right of conscience was also protected in another section against invasion by the states. Significantly, the draft said nothing about state religious establishments. Elbridge Gerry of Massachusetts objected to “national” as implying that the United States was a consolidated entity, rather than a confederation. In response, the Report of the House Committee altered the language to “no religion shall be established by law.” The sections protecting the rights of conscience against infringement by Congress and the states, respectively, were unchanged. There still was no language about state religious establishments.

The amendments adopted by the House once more changed the language. Congress was disabled from establishing religion or prohibiting its free exercise. The rights of conscience were expressly protected once more against infringement by either Congress or the states. Yet again, no such language addressed state religious establishments. The clear implication of the language, then, was that states were not prohibited from having official churches, as long as the rights of conscience were maintained, but that Congress could not establish a church for the United States.

The Senate adopted its own amendments. The relevant provision prohibited Congress from “establishing articles of faith, or a mode of worship, or prohibiting the free exercise of religion.” The House’s restriction on interference with the rights of conscience by the states was dropped. A conference between House and Senate developed the language submitted to the states for approval. The Senate’s establishment language was seen as too weak, as it opened the door for Congress to fund a religious body, thereby creating an established church through the back door of preferred financial support. In turn, the House’s language that restricted state legislative power was deemed contrary to the purpose of the Bill of Rights, namely, to limit the general government. The result was, as Supreme Court justice and professor of constitutional law at Harvard, Joseph Story, wrote later in his influential Commentaries on the Constitution of the United States, “[The] whole power over the subject of religion is left exclusively to the state governments, to be acted upon according to their own sense of justice, and the state constitutions.” Further, Story wrote, “The real object of the amendment was, not to countenance, much less to advance Mahometanism, or Judaism, or infidelity, by prostrating Christianity; but to exclude all rivalry among Christian sects, and to prevent any national ecclesiastical establishment, which should give to an hierarchy the exclusive patronage of the national government…. [The] Catholic and the Protestant, the Calvinist and the Arminian, the Jew and the Infidel, may sit down at the common table of the national councils, without any inquisition into their faith, or mode of worship.”

However, simply adopting in isolation the House’s language that merely prohibited Congress from establishing religion would suggest that Congress could disestablish existing state churches.  That possibility ran counter to the federal nature of the union and endangered adoption of the amendments by undermining support in New England. That produced the awkward language that “Congress shall make no law respecting an establishment of religion.” Congress shall not establish formal religious orthodoxy through a national church, such as the overall still dominant Episcopal Church; at the same time, Congress, likely to be dominated by adherents of that church, shall not make it its business to disestablish existing state churches. The clause, one might say, incorporates a principle of antidisestablishmentarianism, too. Free exercise of religion (but not of non-religion) was fully embraced even in New England by the late 1780s, though it took several more decades of controversy to disestablish fully the Congregational Church in Connecticut (1819) and Massachusetts (1833).

Today, determining the scope and meaning of the establishment clause in controversies far removed from imprisonment for dissent, civil disabilities for attending prescribed religious services, or direct funding of specific ecclesiastical bodies has proved difficult for the Supreme Court. The clause retains both aspects of disestablishment and of its opposite. Religious test oaths are forbidden, which also means that one’s position even as a leader of a religious denomination is not a disqualifier from political office. The recent questioning by Senators Kamala Harris and Maizie Hirono of a nominee to the federal bench about his fitness for office due to his membership in the Catholic Knights of Columbus at least violates the principle behind the prohibition of such oaths.

As well, the Supreme Court has frequently reminded courts and legislatures that the establishment clause prohibits laws that demonstrate hostility to religion. Indeed, government may take a position of benevolent neutrality towards religion and may (and sometimes must) accommodate the actions of religious believers in otherwise neutral laws of general applicability. Certainly, contrary to some exaggerated assertions based on a hasty metaphor in a politically-charged letter by Thomas Jefferson, the clause does not represent a strict principle of an “impenetrable wall of separation” between church and state. Rather, the establishment clause originally represented a limit on the general government to interfere with institutions that represented the sovereign authority of the people of the states, either by displacing them with a superior national church or by prohibiting them (or, even worse, just some of them) directly. The free exercise clause (and its ubiquitous counterparts in the state constitutions) protected the individual rights of conscience and free exercise of religion, a distinction that Justice Clarence Thomas has emphasized. Today, the establishment clause attempts to strike a balance between, on the one hand, the importance to republican government of fostering the natural human inclination to religion and association in religious communities and, on the other, the social instability that historically has occurred when the realm of Caesar is fused to a particular conception of God, as well as the inevitable corruption of religious doctrine and institutions that results from dependence on government favors.

Let the unabashedly left-wing Justice William Douglas have the last word. He wrote in 1952 in Zorach v. Clausen, “The First Amendment, however, does not say that in every and all respects there shall be a separation of Church and State…. Otherwise the state and religion would be aliens to each other—hostile, suspicious, and even unfriendly…. We are a religious people whose institutions presuppose a Supreme Being…. When the State encourages religious instruction…, it follows the best of our traditions. For it then respects the religious nature of our people and accommodates the public service to their needs. To hold that it may not would be to find in the Constitution a requirement that the government show a callous indifference to religious groups. That would be preferring those who believe in no religion over those who do believe.”

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

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In the history of human society, religion and politics have almost inevitably been intertwined. Those in control of the organs of government seek to harness for their own legitimacy and power the natural human longing to participate in a project that transcends one’s everyday life. Religious belief and participation in religious ceremonies satisfy that personal longing, while they are also useful tools to control the actions of the populace and sustain the social order. Because politics has those same objectives of control and order, the levers of religious and political power not infrequently have been held by the same hands. The normal outgrowth of this is an officially-recognized religious dogma with approved outward manifestations, along with suppression, to different extents, of those who would deviate from the true path. In similar vein, those who would dissent from religious orthodoxy often make common cause with those who would challenge the reigning political faction.

In the medieval Christian West, there was a formal separation between the religious and political spheres, represented by Pope and Emperor, which reflected Jesus’s teaching about the superior domain of God and the profane (in the classic meaning) temporal world. However, there, too, the reality was different, in that those entrusted with the care of the soul often participated in power politics. The Pope and his control over the Papal States, the various warrior-bishops in the Holy Roman Empire, the English House of Lords Spiritual and Temporal, and the Archbishop/Electors that chose the Holy Roman Emperor come to mind. As well, secular rulers frequently attempted to influence, by various means, the selection of the Pope and subordinate clergy, and to secure the endorsement of the administrators of the spiritual realm for immediate political goals. The “Babylonian Captivity” of the popes at Avignon under the control of the French king is a prime example.

The end of feudalism and the emergence of the modern State were marked by increased wealth of the political rulers and by centralization of power in the person and the office of the king. In that era of royal absolutism, competing centers of power which might dilute the king’s ability to lay sole claim on the subjects’ loyalties had to be made to submit. Thus, the nobility, stripped of its important ancient privileges, increasingly became courtiers residing at the monarch’s court, where they were more easily controlled. The clergy, too, had to be neutralized. Much is told about King Henry VIII’s project to reduce the Catholic Church to the Church in England and, later, the Church of England–with the monarch as its head. Henry was not alone. With the shattering of the Universal Christian Church by the Reformation, the Holy Roman Empire’s superficial political universality came under pressure. The constituent duchies, principalities, and other assorted noble enclaves aligned based on religion, often for reasons of the rulers’ political ambitions. The specter of religious warfare induced the various parties to adopt the principle of cuius regio, eius religio, that is, the religion of the ruler (Catholicism or Lutheranism) would be the religion of the ruled. Those who did not wish to follow their rulers’ lead could emigrate to a more sympathetic realm; otherwise they might be subject to persecution.

With the vessel of religious universality broken, the essentially anarchistic imperative of Protestantism (“sola scriptura”) led to the formation of various sects beyond the relatively conservative Lutherans and the even more traditional Anglicans. Despite the establishment of the Church of England, the struggle between Anglicanism and Catholicism continued during the 16th and 17th centuries, as various English monarchs favored one or the other. Calvinist Presbyterians, nominally dissenters in England, also had a brief turn in power, through the person of James I Stuart, who had become the head of the Presbyterian Church of Scotland during his tenure as King of Scotland. Excluded from political power were adherents of various dissenting sects, such as Anabaptists and Quakers, and, except during the Oliver Cromwell “Protectorate,” other Calvinists. Their radicalism was seen as subversive of the existing order. Those and other dissenters primarily belonged to the middle classes of artisans, farmers, and merchants.

The common denominator in most European polities was the formal establishment of a particular Christian denomination and the suppression of dissenting views. There were exceptions, however. For example, the 17th century United Provinces of the Netherlands established the Dutch Reformed Church as the official religious body, yet broadly tolerated free exercise of religion even by non-traditional Christians and by Jews. This policy of relative tolerance attracted many adherents of persecuted faiths to the Dutch Republic. It also presented an alternative model to that of most state churches at the time, namely, that officially established state churches need not result in suppression of dissent.

Among the English dissenters were two groups of Calvinists, the “Pilgrim Fathers” and the “Puritans.” While the former sought to separate themselves from the Church of England, the latter hoped to purify it from within by continuing to associate their congregations with the official church. They abandoned that policy after the Restoration and became the Congregational Church. Both groups established settlements in New England. Despite their geographic proximity, their theological differences–though perhaps trivial to an outsider–kept them distinct for several decades, until the Pilgrims’ Plymouth colony was absorbed by the much larger Massachusetts Bay Colony in 1690.

In popular myth, Europeans came to British North America in search of religious freedom, which they heartily extended to all who joined them. The truth is more complex. The Pilgrims and Puritans, for example, indeed came for religious freedom, but for themselves only. Conformity in community, not diversity or toleration of dissent, was the goal. God’s law controlled, and governance was put in the hands of those who could be trusted to be faithful to the ultimate objective, the realization of the City of God on Earth.

As the Pilgrims’ “Mayflower Compact” of November 11, 1620, stated, “Having undertaken for the glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, voyage to plant the first colony in the northern parts of Virginia; [we] …combine ourselves…into a civil body politick, for furtherance of the ends aforesaid ….” Puritan colonies in New England similarly strived for their goal to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it. The “Fundamental Orders” of the Connecticut River towns in 1639, a basic written constitution, set as their purpose to “enter into…confederation together, to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now profess, as also the discipline of the Churches, which according to the truth of the said gospel is now practiced among us ….” 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 theocratic nature of the 17th century New England societies meant that they limited new settlers to those who belonged to their approved strain of Puritanism. Those numbered many thousands, however, as the Massachusetts Bay Colony grew to 10,000 within four years. 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 religious congregationalism that was at the core of the Puritans’ anti-episcopalism and which justified their expulsion of dissenters from their religio-political commonwealth also caused those dissenters to form communities of like-minded believers. Some of them, such as the famous dissenters Roger Williams and Anne Hutchinson, founded settlements in what became Rhode Island. Unlike Massachusetts Bay, these new settlements allowed freedom of conscience and lacked the official religion of other New England settlements.

During the English rule, at least nine colonies had formally established churches, generally the Anglican Church, and all required office holders to be at least Christians. However, other colonies’ founding had lacked the theocratic imperative of New England. While the Anglican Church enjoyed economic and political benefits from its established position, freedom of conscience and practice was extended to other Protestant denominations. Rhode Island, Pennsylvania, and South Carolina were founded with the deliberate goal of protecting peaceable religious practice. Other colonies, seeking to attract as many settlers as possible for the financial gain of investors (Virginia, New York) or proprietors (New Jersey, Maryland, Georgia) had pragmatic reasons to tread softly on the issue of religious orthodoxy.

The position of Catholics and Jews to practice their faith was more tenuous. In England, the Bill of Rights adopted in 1689 officially declared the country a “protestant” realm and prohibited the monarch from being, or being married to, a Catholic, a prohibition reinforced in the Act of Settlement of 1701. Similarly, only Protestants were guaranteed the right to bear arms. Other statutory restrictions on Catholics, Jews, and non-trinitarian Christian sects remained in place well into the 19th century.

In North America, even enlightened charters demonstrated the limits of religious tolerance. Colonial Pennsylvania rightfully has had a reputation for religious liberality. Thus, its 1701 Charter of Privileges declares that no person “who shall Confess and acknowledge one Almighty God…shall be in any Case molested or prejudiced in his or their person or Estate because of his or their Conscientious perswasion [sic] or Practice” or to attend any religious worship or do anything else contrary to their religious beliefs. Nevertheless, that same charter, as well as Pennsylvania’s lengthy “Frame of the Government” in 1682, contained a ubiquitous feature of such constitutions, the religious test oath or affirmation, in this case that all government officials had to “profess faith in Jesus Christ.” Maryland’s Toleration Act of 1649 recognized freedom of worship for anyone “professing to believe in Jesus Christ. However, the Act also provided for the death penalty for blasphemy or “[denying] our Saviour Jesus Christ to bee the sonne of God, or shall deny the holy Trinity the father sonne and holy Ghost.”

The formal establishments remained during the 18th century. However, the enforcement of religious conformity and suppression of dissent was undermined by the growth of the populations from many different European countries, the diversity of their religious beliefs, the relative isolation of settlements due to the large size of the colonies outside New England, and the scarcity of Anglican clergy and absence of a strong hierarchy. True, local communities might be remarkably homogeneous. In the colony at large, Quakers might be attracted to Pennsylvania for shared religious values, Catholics to Maryland, and Congregationalists to New England. Anglicans might be the majority in most colonies. Yet, the variety of sects within a colony and, even more pronounced, across the several North American colonies, combined with the general desire for material success, made tolerance a pragmatic policy. Eventually, pragmatic necessity became aspirational virtue. It must not be overlooked, however, that even the most tolerant polities had no use for skeptics, agnostics, or atheists. There was no Inquisition; the reality was more akin to “don’t ask, don’t tell.” Nevertheless, freedom of religion did not mean freedom from religion.

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

 

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In thinking about what the Declaration of Independence meant for state powers, perhaps the better question is what powers didn’t the states have upon their independence? Consider the very first line and note what is emphasized: “The unanimous Declaration of the thirteen united States of America.” This is telling. Why use “unanimous” if all the states were considered one entity? Importantly, “united” is not emphasized. This also occurs in the last paragraph of the document with the reference to the “Representatives of the united States of America, in General Congress, Assembled…” “Nation” only appears once in the Declaration, and it refers to England, not America. Rather than “nation,” the reference used twice is “Free and Independent States.” Indeed, during this time and up until the Constitution was ratified, the United States was cast as a plural entity. So, if we were going to war with France, the wording would not be “the United States is going to war”, but “the United States are going to war…”

The Declaration clearly calls for the independence of thirteen new nations, not one—“a baker’s dozen of new nations,” as Willmoore Kendall put it, thirteen free and independent states.  What the Declaration meant for the powers of the states was that the states being free and independent, each state had the powers any nation is entitled to, but since God has given man ethical laws in nature and in His laws revealed in Scripture (“the laws of nature and of nature’s God”), no nation and no state is entitled to powers which violate the laws of nature and of nature’s God, nor are the people of any state justified in consenting to any powers that violate the laws of nature and of nature’s God. The Declaration leaves the form of civil government chosen by the people or the representatives of the people of each state up to the representatives and the people of that state. Each must choose for itself a form of government and powers of government which are consistent with preserving the laws of nature and of nature’s God, and thereby preserving the people’s freedom. The people of each state are justified in framing their own particular constitution, civil government institutions, and laws so long as they do not violate the laws of nature and of nature’s God.

The Declaration of Independence was both produced by the states and produced the states.  The colonies’ (then states’) representatives in the Continental Congress produced it.  It is a tremendously important but often misinterpreted document.  There was not a government of the thirteen united States. The Continental Congresses did not have the authority to require the states to do anything; the respective states’ legislatures had to decide whether to act on the recommendations of the Continental Congress. The Continental Congress was based upon the equality of all states, not upon the will of the majority of the people who live in all those states. There was no vote of the people of the States and no attempt to determine the majority will of the people who lived in those thirteen states. The Declaration was unanimous because the representatives of the people of each state agreed upon it, not because the majority, or all of the people, of all the states agreed to it.

Colonists started talking about independence in 1774, but no original powers of legislation were granted to the Congresses of 1774 and 1775. The government was temporary only; it was permitted only for a particular and temporary object, and the States could at any time recall any and every power which it had assumed. Nothing in the powers employed by the revolutionary government, as far as can be seen from its acts, is inconsistent with the sovereignty and independence of the States. Regarding external relations, Congress seemed to have exercised every power of a supreme government. They declared war; formed alliances and made treaties; contracted debts and issued bills of credit. These powers were not “exclusive” though. The colonies raised troops, commissioned vessels of war, and conducted military operations. In conducting the war Congress had no “exclusive” power, and the States retained, and asserted, their own sovereign right and power to do that. Congress exercised no power reducing the absolute sovereignty and independence of the States.  Many powers entrusted exclusively to Congress could not be effectively exercised except by the aid of the State governments. The States raised troops required by Congress. Congress was allowed to issue bills of credit, but not make them a legal tender. Nor could it require the States to redeem them, nor raise by its own authority the necessary funds for the purpose. In these and other important functions, the “sovereignty” of the Federal Government was merely nominal; its efficiency was wholly due to the co-operation of the State governments. The relation between the colonies and their Congress did not change once independence was declared. The chief difference was that the relation was now between the States and their Congress.[1]

Although the powers actually assumed and exercised by Congress were very great, they were not always allowed by the States. Thus, the power to lay an embargo was earnestly desired by Congress, but was denied by the States.[2] The Continental Congress was not a central government of the newly independent States.

There was no central government until the Articles of Confederation in 1781—five years after the colonies issued the Declaration. Even under the Articles of Confederation, it was clear that the states were intended to have the vast majority of civil government power. Article II (of the Articles) clearly stated that “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled.”

Article III established the United States as a league of states that emphasized the right of each state to govern its own internal affairs. It was “a firm league of friendship with each other, for their common defense, the security of their liberties, and their mutual and general welfare…” The purpose of the Confederation was clearly defensive. It was deliberately left for each state to determine for itself how to order its own internal affairs.

Article VI limited the powers of the central government. Centralized power is incompatible with federalism and a confederate form of government. The power must be spread out and limited.

Article VII authorized state control of military ranks. The federal army was to be a very small standing army, supplied by the state militias.

Article VIII. Each state’s taxes were to be determined by the legislature of that state—not by the central government.

Article IX declared what the rights of the central government were. It meant that each state was a sovereign nation that had to be considered in forming any common governmental system for the peoples of the states to live under. The primary powers the central government had under the Articles were to declare war against foreign powers; establish standard weights and measures; mint coins and print currency; and serve as a mediator in all disputes between the states.

The Articles of Confederation was our first national constitution. The newly independent states created it because they recognized their weakness compared to European nations—and wanted to be able to defend themselves against attempts by other nations to conquer them.  They made their first constitution a confederacy because they wanted to continue to rule their own internal affairs, but still be able to join with the other states to defend against foreign aggression—based on religion or any other causes.

Although it was not ratified until March 1781, it was given to Congress in November of 1777, and it was essentially the structure of government that the United States operated under all through the War of Independence. In 1779, the Continental Congress passed a resolution acknowledging the operating status of the Articles prior to its being fully ratified by the states in 1781.[3]

The states declared their independence in order to be and remain independent, self-governing states. Their Declaration of Independence is neither our fundamental governing document nor the controlling authority for American civil government, law, and politics.  It is simply our original states’ declaration of their right to fight for their respective independence from England and of their equal status as free, independent nations. They created the Articles of Confederation to maintain their individual sovereignty, but to provide their united military power. When government under the Articles proved defective, many in the states sought to create a stronger central government; many others feared that the new central government would be too strong. The new governmental system that the colonies established under the Constitution was meant to retain the great majority of governmental power in the respective states, not to centralize power in the new, limited national government, nor to enable future officials in that government to centralize power. Those who advocated ratifying the finished Constitution insisted that the new central government did not and would not be a threat to the powers of the states.

Jennie Jones, Instructor of Government and History, Weatherford College

[1] Abel P. Upshur, The Federal Government: Its True Nature and Character; Being a Review of Judge [Joseph] Story’s Commentaries on the Constitution of the United States (New York: Van Evrie, Horton & Co., 1868), Reprinted by St. Thomas Press, Houston, Texas, 1977, p. 64-65

[2] Upshur, p. 66

[3] Dr. George Grant, Ph.D. Lit., King’s Meadow Humanities Curriculum: American Culture, Instructor’s Guide (Franklin, Tennessee: King’s Meadow, 2011). p. 202, 293

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In declaring their independence from the British Empire, “the Representatives of the united States of America” acted “in the Name, and by Authority of the good People of these Colonies.” The “United Colonies are, and of Right ought to be, Free and Independent States.” Plural, not singular. But also united: as one of Mr. Shakespeare’s characters says, there’s the rub. The American States are free and independent respecting Great Britain. But are they free and independent respecting one another? And if so, to what extent? “As Free and Independent States, they have full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and do all other Acts and Things which Independent States may of right do,” but may they do these things severally, without regard to each other, or only as a united body? What is the character of the American Union?

Notoriously, Abraham Lincoln and Jefferson Davis later would find themselves in disagreement over this matter. But in the generation between the founding and the Civil War, a slaveholding Southern democrat, and Democrat, delivered a cogent analysis of America’s constitutional Union, promising to enforce the terms of that Union as he understood them. No one doubted that he would; Andrew Jackson was not a man to be crossed.

In 1828, Congress enacted a tariff law, one so sharply resented that South Carolinians, led by John C. Calhoun, called it the “Tariff of Abominations.” Calhoun resigned from the vice presidency and entered the Senate to fight the tariff. By the early 1830s, South Carolina handed Jackson a serious constitutional crisis.

Jackson was far from an enemy of States’ rights. In his First Inaugural Address of March 1829 he had announced that “In such measures as I may be called on to pursue in regard to the rights of the separate States I hope to be animated by a proper respect for those sovereign members of our Union, taking care not to confound the power they have reserved to themselves with those they have granted to the Confederacy”—that is, the federal government. Nine months later, in his First Annual Message, he praised the Framers’ design, which consisted of a federal government with “limited and specific, not general, powers”; “it is our duty,” he continued, “to preserve for it the character intended by its framers.” “We are responsible to our country and to the glorious cause of self-government for the preservation of so great a good.” This being so, “the great mass of legislation relating to our internal affairs was intended to be left where the Federal Convention found it—in the State governments.” He warned Congress “against all encroachments upon the legitimate sphere of State sovereignty.”

Nullification of duly enacted federal laws was another matter, however. As early as the Jefferson Day Dinner in April 1830, Jackson fixed Calhoun with his formidable stare and toasted “Our Federal Union—it must be preserved.” The warning went unheeded; indeed, the nullification movement spread to other Southern states. On November 1, 1832, South Carolina solemnly nullified the tariff law, threatening to secede from the Union if the federal government moved to enforce it. South Carolina, the state legislators intoned, “will forthwith proceed to organize a separate government and to do all other acts and things which sovereign and independent states may of right do”—thus echoing the language of the Declaration of Independence without noticing its underlying principle of unalienable natural rights.

In his Fourth Annual Message of December 1832, by which time he had been duly elected to a second term in office, Jackson reported that “in one quarter of the United States opposition to the revenue laws has arisen to a height which threatens to thwart their execution, if not to endanger the integrity of the Union.” He followed this a few days later with a proclamation refuting Southern pretensions. To claim a constitutional right to nullify federal laws as unconstitutional, “coupled with the uncontrolled right to decide what laws deserve that character, is to give the power of resisting all laws; for as by the theory there is no appeal, the reasons alleged by the State, good or bad, must prevail.” But the Constitution, the supreme law of the land, provides only two appeals from allegedly unconstitutional federal laws: judicial review and constitutional amendment. If the South Carolina doctrine “had been established at an earlier day, the Union would have been dissolved in its infancy.”

Jackson then reviewed the history of the American Union as defined and refined during the Founding period. The Union, he observed, predates not only the Constitution but the Declaration of Independence. In October 1774, the First Continental Congress met in Philadelphia in response to legislation enacted by the British parliament and king. After the Boston Tea Party, Britain aimed to punish Massachusetts by curtailing citizens’ rights—suspending the right to jury trials, among other measures. Calling these the “Intolerable Acts,” the delegates set down the Articles of Association, boycotting British imports (including slaves) and suspending American exports to England. To reinforce these proposals, Congress recommended sumptuary restrictions: no “shows, plays, and other expensive diversions and entertainments,” including horse races and cock fights. These curtailments of consumption would back the restrictions on trade. Congress further proposed the formation of local committees to expose violations of these policies—effectively enforcement by shaming. In Jackson’s words, “they agreed that they would collectively form one nation for the purpose of conducting some certain domestic concern and all foreign relations.”

The Articles of Association amounted to a treaty among the colonies, not a government. Two years later, the Declaration of Independence anticipated redefining the Union on governmental lines. Describing Americans as “one People,” the Signers announced that the United States were ready “to assume among the Powers of the Earth, the separate and equal Station to which the Laws of Nature and of Nature’s God entitle them.” All independent peoples are entitled to such a “station” or status because “all Men are created equal”—”endowed by their Creator with certain unalienable Rights,” among which number “Life, Liberty, and the Pursuit of Happiness.” If a group of such equal persons consent to a government that does what governments rightly do—aiming to secure those rights—then they deserve diplomatic recognition from other peoples so organized. Conversely, governments that fail to secure those rights forfeit that consent. The long list of grievances against the British king and parliament that follows provides a sort of photographic negative of justly used governmental powers. These include the power of declaring war, settling peace, domestic legislation, and government by law with an independent judiciary. The abuse of those powers by the British government rightly led to disunion; union, by implication, requires their proper use within the framework of the Laws of Nature and of Nature’s God by the consent of the people.

After vindicating their claim of independence on the battlefield (Jackson had been one of the militiamen, at the age of thirteen), the Americans further defined the terms of their Union with their first constitution, the Articles of Confederation. In Jackson’s words, the states thereby pledged to “abide by the determinations of Congress on all questions which by that Confederation should be submitted to them,” with no state entitled to “legally annul a decision of the Congress or refuse to submit in its execution,” although the Articles provided no means of enforcing this provision. Inasmuch as the 1787 Constitution formed “’a more perfect Union’ than that of the Confederation,” how could that law permit the Union to backslide beyond even the unenforceable Union enacted under the Articles?

“I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.” More, “this right to secede”—which Jackson clear-sightedly perceived as inherent in the assertion of the sovereign right to annul—“is deduced [by the nullifiers] from the nature of the Constitution, which, they say, is a compact between sovereign States who have preserved their whole sovereignty and therefore are subject to no superior.” But Jackson correctly identifies the American people as the sovereigns, not the state or federal governments, and under the Constitution the executive is charged with enforcing federal law. “The Constitution of the United States…forms a government, not a league; and whether it be formed by compact between the States or in any other manner, its character is the same.” That government “operates directly on the people individually, not upon the States,” as it had under the Articles.

“It is the acknowledged attribute of free institutions that under them the empire of reason and law is substituted for the power of the sword.” As argued in the Declaration of Independence (and earlier by John Locke and other natural-rights philosophers), it “needs not on the present occasion be denied” that “a State or any other great portion of the people, suffering under long and intolerable oppression and having tried all constitutional remedies without the hope of redress, may have a natural right, when their happiness can be no otherwise secured, and when they can do so without greater injury to others, to absolve themselves from their obligations to the Government and appeal to the last resort,” namely, the force of arms. The right to revolution under such circumstances is a right not only of Americans but “a right of mankind.” “It is not the right of the State, but of the individual, and of all the individuals in the State.” “Like any other revolutionary act,” secession “may be morally justified by the extremity of the oppression; but to call it a constitutional right is confounding the meaning of terms,” inasmuch as “a compact is an agreement or binding obligation.” If that compact “contains no sanction, it may be broken with no other consequence than moral guilt,” as a league among independent nations might be broken; “a government, on the contrary, always as a sanction, express or implied, and in our case it is both necessarily implied and expressly given” in the provision made “for punishing acts which obstruct the due administration of its laws.” The name for “an offense against sovereignty” is treason. Jackson charges that the nullifiers’ “object is disunion…. Disunion by armed force is treason,” and Jackson leaves no doubt that he will use his executive power as president of the United States to punish its perpetrators accordingly. Thus Jackson clearly defines popular sovereignty not as a principle justifying the political superiority of the States over the federal government (as nullifiers and secessionists did), nor as a principle justifying might-makes-right majority rule of a nation over the states (as Stephen Douglas would later do), but as an instrument justified only by its adherence to the standard of natural rights. The sovereign people have divided their sovereignty between the States and the general government; accordingly, States’ sovereignty and States’ rights are limited to those objects the united people did not assign to the federal government; the federal government, for its part, is limited to the powers enumerated by the Constitution and ratified by the people. “It is not for territory or state power that our Revolutionary fathers took up arms; it was for individual liberty and the right of self-government.”

In a letter to Congress in January 1833, Jackson warned that “If these measures can not be defeated and overcome by the power conferred by the Constitution on the Federal Government, the Constitution must be considered as incompetent to its own defense, the supremacy of the laws is at an end, and the rights and liberties of the citizens can no longer receive protection from the Government of the Union.” With no major source of revenue other than the tariff, the federal government itself would shrivel and collapse and the states would take over the rule of the people resident within them. Citing the Constitutional obligation of the Executive to “take care that the laws be faithfully executed,” Jackson signed the “Force Bill” on March 3, 1833, the day before his Second Inaugural Address. In the words of his most recent biographer, Bradley S. Birzer, he then “called up militias, ordered three divisions of artillery to South Carolina, gave General Winfield Scott command over Charleston Harbor, ordered the reinforcement of Charleston’s federal forts, and placed naval warships just offshore.” In the Address, he wrote that “The eye of all nations is fixed on our Republic. The event of the existing crisis will be decisive in the opinion of mankind of the practicability of our federal system of government.” Taking notice, South Carolina backed down.

By the time of his Farewell Address four years later, Jackson could assert with confidence, “Our Constitution is no longer a doubtful instrument, and at the end of nearly a half century we find that it has preserved unimpaired the liberties of the people, secured the rights of property, and that our country has improved and is flourishing beyond any former example in the history of nations.” He nonetheless warned, “We behold systematic efforts publicly made to sow the seed of discord between different parts of the United States and to place party divisions directly upon geographical distinctions; to excite the South against the North and the North against the South, and to force into controversy the most delicate and exciting topics—topics upon which it is impossible that a large portion of the Union can ever speak without strong emotion.” Jackson does not deny the wrong of slavery, only that the consequences of disunion would be worse, reintroducing the likelihood of international war to North America without liberating the slaves. Recalling the Farewell Address of his most distinguished predecessor, he asked, “Has the warning voice of Washington been forgotten, or have designs already been formed to sever the Union?”

Will Morrisey is William and Patricia LaMothe Professor Emeritus of Politics at Hillsdale College, and is a Constituting America Fellow; his books include Self-Government, The American Theme: Presidents of the Founding and Civil War and The Dilemma of Progressivism: How Roosevelt, Taft, and Wilson Reshaped the American Regime of Self-Government.

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American Revolution and Expanding the States – How the American Revolution and nationhood voided the Proclamation Line of 1763, allowing expansion for American settlement of the Western frontier

In 1763, with “the scratch of a pen,” North America had changed forever.[1] After years of looming as an ever-present danger, the French threat had finally been removed from Canada and the lands east of the Mississippi. The territory had been hard won as a result of the 1763 Treaty of Paris that formally ended the French and Indian War waged on the British colonies’ western frontier since 1754. “That Enemy who hath so long stuck like a Thorn in the Sides of our Colonies is removed,” wrote Massachusetts governor Francis Bernard; now “North-America” was “[e]ntirely British.”[2] Native American unrest followed. That same year, the newly crowned King George III, fearful of further rebellion and citing it as “essential to our Interest,” stopped western expansion with a theoretical line on a map that ran through the Appalachian Mountains (which run from modern day Canada to Alabama).[3] The Proclamation of 1763, as it was known, barred Americans from collecting their promised spoils of war, and unknowingly became one of the American Revolution’s earliest causes.

The French and Indian War had been fought globally, but had been ignited in America over disputed lands just west of the Appalachians that the British, French, and Natives each believed to be rightfully their territory. At the center of the outbreak was a twenty-two-year-old Lt. Col. George Washington of the Virginia Militia, whose expedition and skirmish in the area around modern-day Pittsburgh had in part sparked the conflict. Washington was one of many American colonists who would fight for King and Country, but who also hoped to reap the lucrative gains of the frontier.

Peace was supposed to place the land into the waiting hands of American colonists. But as speculators laid claim to millions of acres and settlers migrated to reap the benefits of the rich farmlands of the Ohio Valley, it sparked a rebellion of unified Native American tribes.[4] Known as Pontiac’s Rebellion, the conflagration was ultimately suppressed at great British expense and effort. Hoping to stop an unrestrained colonial rush into the west in order to prevent further Native hostility (and both to retain control over the colonies and trade and to promote settlement in Quebec and Florida), the Proclamation halted American migration and “reserve[d]” the land “under” the King’s “Sovereignty, Protection, and Dominion, for the use of the said Indians.”[5]

Although the Proclamation was virtually unenforceable and was deemed temporary, the royal decree still triggered a sharp backlash and even outward violence from colonists who had invested in western lands, sought to settle, or been denied their promised rewards for military service. From the Mississippi Land Company to the Ohio Company, potential fortunes had been stifled, as land could not formally change hands from the Natives without royal approval and licensing.

Still, colonial resistance to the Proclamation of 1763 went beyond personal economic interests. It was one of the first of many British failings that colonists saw as distancing them from the mother country. The British Army, which was supposed to defend all subjects yet was historically viewed with deep fear by Anglo-Americans, was potentially weaponized to avenge the King’s “Displeasure.”[6] Colonists were limited in their movement, their property rights were hindered, and more substantially promises offered by the Crown had been invalidated. Furthermore, it seemingly protected Native Americans’ interests over the American colonists’. It created “two distinct worlds” whereby any claims to being a subject disappeared west of the line and the military held authority.[7] Colonists, like Washington, pressed their western claims up to and beyond the Revolution’s outbreak. As he complained, regardless of whether the Proclamation was “founded in good, or ill policy,” a promise of land grants had been made to French and Indian War veterans — one that was “to all Intents & purposes considered, as a mutual contract.”[8]

Although the Proclamation wasn’t actively enforced and with the line pushed further west due to the Treaties of Fort Stanwix and Hard Labor in 1768 and the Treaty of Lochaber in 1770 (prompting further speculation), the Second Continental Congress meeting in Philadelphia in 1776 still considered the issue as worthy of inclusion in the Declaration of Independence. For, in the Patriot view, the King “endeavoured to prevent the population of these States,” and “refus[ed]…to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.”[9] In doing so, the Congress acknowledged the Proclamation as being more than just a financial issue; it was a long remembered ideological and governmental grievance.

Twenty years after the 1763 Treaty of Paris opened the frontier to American colonists, the 1783 Treaty of Paris both ended the Revolution and ceded all lands east of the Mississippi River to the United States. Under the Articles of Confederation there was further delay in western expansion by design and conflict over territorial claims between various states.[10] It was under the new U.S. Constitution that additional disputes were resolved, existing state borders formalized and expanded westward, and the remaining lands organized into the Northwest and Southwest Territories, with statehood dependent upon population.[11] Furthermore, Secretary of War Henry Knox attempted to spread American “civilization” to the Native Americans, as he believed it would “most probably be attended with the salutary effect of attaching them to the Interest of the United States.”[12] In 1792, Kentucky entered the United States as the fifteenth state and first in the region formerly barred by the Proclamation of 1763 (Tennessee and Ohio would follow shortly). Although the paper barrier had fallen, tension with the British (as well as the Spanish) and Natives remained, as the land, its culture, and its borders were contested through the War of 1812. Meanwhile, the issue of the expansion or restriction of slavery in the new states simmered for over half a century, before erupting in the Civil War.

Craig Bruce Smith is the author of American Honor: The Creation of the Nation’s Ideals during the Revolutionary Era and an assistant professor of history at William Woods University. For more information: www.craigbrucesmith.com

[1] Colin G. Calloway. The Scratch of a Pen: 1763 and the Transformation of North America. (Oxford, England: Oxford University Press, 2006), p. 14-15.

[2] Ibid.

[3] The Royal Proclamation, Oct. 7, 1763. http://avalon.law.yale.edu/18th_century/proc1763.asp

[4] For economic motivation see: Woody Holton. Forced Founders: Indians, Debtors, Slaves, and the Making of the American Revolution in Virginia. (Chapel Hill: University of North Carolina Press, 1999).

[5] The Royal Proclamation, Oct. 7, 1763. http://avalon.law.yale.edu/18th_century/proc1763.asp; Jennifer Monroe McCutchen. “Proclamation Line of 1763,” Digital Encyclopedia of George Washington. https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/proclamation-line-of-1763/; Fred Anderson. Crucible of War: The Seven Years’ War and the Fate of Empire in British North America, 1754-1766. (New York: Vintage, 2000), p. 580.

[6] Ibid; Calloway. The Scratch of a Pen, p. 92-93.

[7] Patrick Griffin. American Leviathan: Empire, Nation, and the Revolutionary Frontier. (New York: Hill & Wang, 2007), p. 21; Alan Taylor. American Revolutions. (New York: W.W. Norton and Company, 2016), p. 61; Brendan McConville. The King’s Three Faces: The Rise & Fall of Royal America, 1688-1776. (Chapel Hill: Omohundro, 2006), p. 235.

[8] George Washington to Lord Botetourt, 8 Dec. 1769. Founders Online. https://founders.archives.gov/documents/Washington/02-08-02-0188

[9] The Declaration of Independence. 4 Jul. 1776, https://www.archives.gov/founding-docs/declaration-transcript

[10] Benjamin Harrison to Virginia Delegates, 19 September 1783, footnote 3. https://founders.archives.gov/?q=%22proclamation%20of%201763%22&s=1111311111&sa=&r=65&sr=

[11] US Constitution, 1787, https://www.ourdocuments.gov/doc.php?flash=false&doc=9&page=transcript; Northwest Ordinance, 1787, https://www.ourdocuments.gov/doc.php?flash=false&doc=8&page=transcript;

Southwest Ordinance, 1790

https://constitution.org/uslaw/southwest_ordinance.pdf

[12] Henry Knox to George Washington. 7 July. 1789. Founders Online. https://founders.archives.gov/documents/Washington/05-03-02-0067

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Having founded republican regimes in America, regimes animated by respect for the laws of Nature and of Nature’s God as enunciated in their Declaration of Independence from the British monarchy, the Founders remained vexed at the confederal form of the American state–the relations among the several states in the confederation and the relationship between the weak federal government and those states, relationships framed in the Articles of Confederation. True to its title, The Federalist centrally addresses this question—literally so. James Madison, scribe of the Constitutional Conve