Guest Essayist: Joerg Knipprath
Essay Read By Constituting America Founder, Actress Janine Turner
The principle of establishing justice through the rule of law is a means of guarding against gradual erosion of law and order into chaos to break down America’s system of self-governing. It guards against eventually ushering in tyranny to control the people rather than protect liberty by protecting the rule of law.
“…you seem…to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.
The quoted passage by Thomas Jefferson addresses an issue that has been a repeated topic of controversy since the United States Constitution was proposed to the state conventions, namely, the role of the unelected federal courts in a system grounded in popular consent and self- government. Courts are supposed to apply the law prescribed by the people’s representatives but not be swayed by popular opinion in particular cases. An independent judiciary long has been recognized in Western constitutionalism as a fundamental component of any political system which takes seriously the individual liberties of its citizens. In ordinary criminal cases or civil suits the role of the courts as guardians of individual rights and as dispassionate decision-makers is indisputable. In cases of constitutional law and judicial review of the constitutionality of the acts of elected officials, the matter becomes more ambiguous.
Such cases are inherently political in that they present a challenge to self-government and call into question the particular competence of judges to resolve them. True, some topics, such as foreign affairs, are more political than others, such as specific guarantees of individual rights. But, as has been noted by various writers, each time a court strikes down a law, that action can be seen as a blow against self-government. When the Supreme Court decides a constitutional law case, the holding affects the entire country, not just the specific litigants. Moreover, those litigants often do not represent the opinions of a popular majority on the issue. To be consistent with the fundamental republican principle of majority rule, should unelected courts be making such decisions at all, then?
Abraham Lincoln made the point succinctly in his first inaugural address when he pledged non-interference with the specific decision in the Dred Scott case about Scott’s inability to sue for his freedom but also declared, “At the same time, the candid citizens must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Clearly, our constitutional system has decided that judges ordinarily should make such decisions, but the inherent contradictions among first principles created thereby do not disappear.
Republican government is premised on the idea that the people, or some portion thereof deemed sufficiently qualified, decide the important public matters. Unlike in a democracy, they do so through representatives selected by them directly or, in the original design for the Senate and the President, more circuitously. Should a 5-4 majority of the unelected Supreme Court effectively have the final word, or should a majority of the people’s representatives have the power to override the Court’s holding on the matter? This is a particular problem in that the Supreme Court is selected from a very small class in society, an elite whose cultural and political values differ sharply from those of the American people as a whole. Should federal judges be elected, rather than appointed? Indeed, considering the classic republican principle that the greater the power, the shorter the term in office in order to avoid oligarchic control, should federal judges serve very short terms before returning to their ordinary stations in life? In turn, would such alternatives adequately preserve the necessary independence of judges?
All these questions were raised by various Anti-federalist writers during the debate over the adoption of the Constitution. The potential life tenure of federal judges was a glaring red flag for critics of the proposed charter. As a textual matter, the Constitution fixes their tenure by “good behavior,” but that ambiguous concept itself was tied to the practice of impeachment. Because impeachment in England had come to be seen as a limited tool requiring something more than political disagreement or general unpopularity, the Constitution expressly provided specific, and quite restricted, grounds for removal of officers by that method, effectively creating “life tenure.” But Antifederalist attacks on the federal courts were not limited to the issue of life tenure. Although the Constitution is silent on the matter, the opponents soon focused on the perceived ability of the Supreme Court to sit in judgment of the constitutionality of the actions of the people’s representative in Congress and the state legislatures.
A very sophisticated attack on the Supreme Court appeared in 1787 and 1788 in various essays of Brutus, one of two pen names generally attributed to the New York judge, and eventual state chief justice, Robert Yates. Yates had been selected as one of New York’s three delegates to the Philadelphia Convention but, along with Judge John Lansing, Jr., had left that assembly early because he objected to the nationalizing tendencies he saw in the emerging draft. His essays were authoritative during the debates in the critical New York ratifying convention.
In Essay No. 11, published January 11, 1788, Brutus observed that Article III, Section 2, of the Constitution vests the power to determine all questions that may arise under the Constitution. He questioned whether that power would be used for the general good. He explained his concerns, “[I[n their decisions, they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they [the judges] are authorised by the constitution to decide in the last resort.”
Brutus worried that the federal courts would interpret the Constitution’s often ambiguous language broadly in favor of the general government to the eventual “subversion of the legislative, executive, and judicial powers of the individual states.” Applying the history of the English court of exchequer, he charged that the courts would extend their jurisdiction and influence well beyond that understood at their creation. “Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance.”
In Essay No. 15, published March 20, 1788, Brutus again addressed the danger to the people’s liberty and to the existence of the state governments from the lack of any control over the constitutional rulings of the Supreme Court. “There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”
For Brutus, the solution would have been to make such Supreme Court rulings subject to review by the legislature, much as English court holdings often were subject to review by the House of Lords. “Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them [through elections], and do themselves right; … A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people chuse at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.” [Emphasis in the original.]
The convincing effect those and similar other critical essays Yates wrote had on New Yorkers finally prompted Alexander Hamilton to write a response published on May 28, 1788, just ahead of the meeting of the New York ratifying convention on June 17. Essay No. 78 of The Federalist is among the longest of the papers and the one most frequently cited by the Supreme Court. Hamilton agreed with Yates that the federal courts would interpret the Constitution, because the Constitution being law, it “is the proper and peculiar province” of them to do so. Because judges owed their powers to the Constitution, just as did the legislators, the courts would, and must, disregard statutes which conflicted with the fundamental law of the Constitution. Hamilton dismissed Yates’s contention that this implied a superiority of the judicial branch, claiming instead that “[I]t is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Thus, Hamilton laid the groundwork for an independent federal judiciary in matter of constitutional law.
As his quoted letter attests, Jefferson shared Yates’s concerns and discomfort about the federal courts, especially the Supreme Court’s power of constitutional judicial review. Jefferson believed that the rule of law and the fundamental structure of a government of divided powers created under the Constitution was best served under a “departmental theory” of final authority. While the Supreme Court might have the final say as to how the courts will decide cases, their opinions about the constitutionality of a co-equal branch’s acts, although entitled to respect, were not binding on those other branches. The remark from Lincoln’s first inaugural speech, quoted above, is an application of that theory. So is the admonition, perhaps apocryphal, attributed to President Andrew Jackson on the occasion of an unpopular opinion by Chief Justice John Marshall in Worcester v. Georgia, “John Marshall has made his decision, now let him enforce it.”
Hamilton was not insensitive to such criticisms in his essay. He adamantly insisted that the judges’ life tenure was necessary to preserve their independence. Still, the scope of the courts’ constitutional judicial review must be limited. He wrote, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; …” The rule of law demands that such rules be clear and constant, knowable, and predictably applied. This was particularly important with the Constitution, which was “law” because it was written. Therefore, it was the letter of the document, not some vague notion of its “spirit” that the courts must apply, lest their opinions become exercises of “WILL instead of JUDGMENT,” which would merely be the “substitution of their pleasure to that of the legislative body.” [Emphasis in the original.]
Moreover, courts could disregard only those statutes which were clearly unconstitutional.
“If there should happen to be an irreconcilable variance between the two [a statute and the Constitution], 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.” Using tortuous arguments to discover theretofore unknown penumbras and emanations from constitutional language, or investing that language with personal notions of good policy or better morality would not suffice.
Finally, Hamilton laid down a crucial limitation by specifying the object of constitutional judicial review. Judges must be independent and zealous protectors of liberty rooted in law. But there was a limit to judicial independence, lest it become itself a threat to republican rule. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors [tempers], which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves; and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Judicial review was to be conservative, in the sense of protecting the received constitutional order from the excesses of momentary popular passions as well as from “the cabals of the representative body.” That, too, is consistent with the order provided by the rule of law. It is also consistent with republican self-government, as it merely seeks to slow down a heedless rush to action by allowing for further reflection and the triumph of reason.
What is not consistent with republican self-government and legitimate Hamiltonian judicial review is when the judiciary assumes the role of constitutional innovator. For example, when the Supreme Court abruptly overturns long-settled and widespread laws that affect basic institutions of society or traditional social relations, the justices are exercising independence. But they are not guarding the liberty of individuals or political minorities from temporary majoritarian passion. They are, in effect, amending the Constitution by a simple majority vote of one branch of government composed of a few members enjoying life tenure, the branch that has no accountability to the public and is drawn from a very small elite. That is consistent with neither the stability and predictability associated with the rule of law nor republican self- government. In taking such actions, the Court assumes the role of a constitutional convention.
Relying on the postulate of popular sovereignty, Hamilton, Madison, and other supporters of the Constitution emphasized as a first principle the people’s right to change their constitutions at any time and for any reason. Such innovations should not be undertaken lightly, and at least as codified in Article V of the Constitution, require a difficult super-majoritarian process involving multiple governmental bodies, radically different from judicial constitutional amendment by a 5-4 vote.
There is much to admire in a culture which has preserved for so long an independent judiciary within its constitutional structure. One hopes that this remains the norm, and that voices who have suddenly now discovered a political advantage from changing the rules of the game will go unheard. The Supreme Court has warranted the respect it has enjoyed overall as an institution, because in most cases the justices have performed their roles with wisdom and sagacity. But they are political actors, and their judgment has not been infallible. To preserve that respect and the independence required to counteract majoritarian passions when the need arises, the Court is well-advised to stay true to its role as the guardian of the rule of law and the received Constitution, not as a constitutional lawgiver leading a compliant people.
Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.
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Essay 18: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapter 21
90 in 90 2024, Marc Clauson On The Federal Constitution - Volume 1 Part 1 Chapter 8 Sub Chapter 21, 2024 - De Tocqueville Study, 14. De Tocqueville StudyEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 146 (starting at heading “What Distinguishes the Constitution of the United States of America from all other Federal Constitutions – 149 (stopping at On the Advantages of the Federal system Generally and its special Utility for America) of this edition of Democracy in America.
The French writer De Tocqueville traveled in and wrote about the culture and politics of the new American Republic between 1835 and 1840. His work has become a classic of political thought and is considered one of the most insightful analyses of the early Republic and its institutions. Democracy in America is De Tocqueville’s most important work, particularly for our consideration of the Constitution.
The question in subchapter 21 is a crucial one, even in current discourse on the Constitution. De Tocqueville asks what makes the American Constitution different from other constitutions. In his day, the American version was certainly not the only constitution in effect (even less so today). In addition, several elements set the American compact apart from other similar documents, such as Poland and France. De Tocqueville focuses on one aspect—a very important one. As he explains it, the most unique innovation of the American Constitution is that, unlike the previous Articles of Confederation, whose provisions only allowed the national government to operate on state governments as a whole, the new compact’s provisions operated directly on citizens of each state. Before, the state governments could, and sometimes did, simply refuse to follow laws enacted by Congress based on its powers. As De Tocqueville writes, “In America, the Union has, not states, but plain citizens, for those governed.” The new Constitution bypasses the states in the exercise of its enumerated powers.
This innovation might at first seem somewhat insignificant. But if one remembers the previous regime, it was the very problem of the inability of the Congress to enforce its powers that threatened the survival of the new republic. This flaw (at least in large part) drove the Constitutional Convention to take drastic action in devising a wholly new social compact. Even assuming common interests existed among the entire population and across all or most states, the possibility that each time Congress attempted to enforce its agreed-upon powers could lead to defiance on the part of even one state, and could inevitably incentivize more states to ignore the national government. The entire confederation might disintegrate.
Vincent Ostrom has elaborated on the political theory underlying the American Founders’ innovation, beginning with the foundational idea that “people as individual persons are the fundamental units to be considered in organizing any political association…The individual person is the doer of acts. The way each individual as a person relates himself to others is the basis of all social organization.” The fundamental reason for the existence of government is to establish order among individuals. Collectivities as a whole cannot make such decisions apart from the individuals constituting them. Moreover, individuals as individuals are the recipients of political order, as a given law or policy does not fall on an abstract entity called a state, but on natural humans, notwithstanding the occasional legal attribution of some corporate entities as legal persons. Even a decision affecting a corporation in the first instance eventually affects the individuals related to that corporation, not the “thing” called a corporation—for example, employees and consumers.
In addition, De Tocqueville and the American Founders recognized that laws needed to be enforced to be effective. But under the previous Articles of Confederation, sanctions amounted only to advice or suggestions. To be effective, laws had to be enforceable as against individuals, the actual actors. Without the design of the Founders, the very idea of a government and its goal would be thwarted, to the detriment of the citizens. Once again, one can see the uniqueness of the American Constitution. It would not be an overstatement to assert that the American constitutional system would not work, in fact, might collapse, without this innovation added by the Founders.
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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Essay 17: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapter 20
90 in 90 2024, Adam Carrington On The Federal Constitution - Volume 1 Part 1 Chapter 8 Sub Chapter 20, 2024 - De Tocqueville Study, 14. De Tocqueville StudyEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 143 – 146 (stop at heading What Distinguishes the Constitution of the United States of America from all other Federal Constitutions) of this edition of Democracy in America.
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In this section of Democracy in America, De Tocqueville claims that the national constitution is superior to those found in the states. In making this case, he points to a broader purpose of his project.
As he stated early in the work, De Tocqueville thinks that a general movement toward democratic forms of government are inevitable, part of a Providential movement in history. Yet he believes humans possess the ability to make their democracies better or worse. Here, he notes two problems democracies tend to face. Both he claims the national constitution combats better than its state counterparts.
First, De Tocqueville writes that one danger for democracies is the possibility of “[t]he complete enslavement of the legislative power to the will of the electoral body.” One might think this point is a good thing, a feature, not a bug. Should not the lawmakers in a popular government follow the will of the people, who by definition are the sovereign in such regimes?
De Tocqueville does not deny the ultimate sovereignty of the people. But he wants the people to exercise their rule in the most thoughtful, moderate, and just way possible. The people do so best through representatives who themselves possess some ability to lead and thus to mold popular opinion rather than merely follow it. This balance, wherein the representatives truly represent but do so with some room to persuade, depends in large part on the terms of office lawmakers hold.
In the states, the lawmakers tend to hold one to two year terms, De Tocqueville notes. This made the representatives constantly dependent on the immediate, short-term views of the people. In that mode, the people could be prejudiced, passionate, and irrational, as all persons can be at certain points in life. The national constitution established longer terms—two years for the House and six for the Senate—with the idea that, “lengthened the time of the electoral mandate to allow to the deputy a greater use of his free will.” With some space between elections, lawmakers had some time to persuade voters, to appeal to their more settled, rational, and longer-term interests. That space would increase the chances of justice being served, not the mighty feeding on the weak.
Second, the French thinker states that democracies tend to result in “[t]he concentration, in the legislative power, of all the other powers of government.” The Americans had learned from another Frenchman, Montesquieu, that political power was by nature legislative, executive, or judicial and that free governments divided these tasks among distinct institutions. To combine them descended into tyranny, even if it was the people themselves combining the power.
But state constitutions had proven woefully inadequate in realizing the truth about separation of powers. Though having such a distinction on paper, the legislative power tended to dominate in practice; executives and judges became the puppets of the lawmakers. The national constitution reacted to these problems with a better structure.
The president as national executive would have a four year term, thus giving him the independence that came with length of office. Moreover, the legislature could not coerce him to act in certain ways by diminishing or eliminating his salary. Finally, De Tocqueville points to the veto, whereby the president could stop legislative attempts to minimize or eliminate his inherent constitutional powers.
Other guards existed for the judiciary. They, too, would have salary protections. But instead of a four-year term, the judges, once appointed, held their positions for life absent willing resignation or the difficult process of impeachment and removal. These judges need not succumb to legislative control but instead could exercise their own powers in ways that furthered their purpose and checked overreaches from other branches.
Taken together, De Tocqueville says the clear result was that, “the affairs of the Union are infinitely better conducted than the particular affairs of any state.” By this claim he meant the national government operated in a more moderate, wise, intelligent, stable, and firm manner. Doing so was about much more than simple efficiency. De Tocqueville saw in the national constitution mechanisms that preserved the people’s liberty against its many foes. The national constitution channeled decision-making the exercise of power in ways more likely to result in justice.
We would be wise to listen to De Tocqueville’s wise observations. It not only will make us better students of our own country. It might make us better citizens of it here and now.
Adam M. Carrington is Associate Professor of Political Science at Ashland University, teaching courses on U.S. political institutions and the intersection of faith and political thought. Previously, he taught in The Van Andel Graduate School of Statesmanship at Hillsdale College, focusing on the U.S. Constitution, Constitutional Law, The American Presidency, and Politics & Literature. His writing has appeared in such popular forums as The Wall Street Journal, The Hill, National Review, and Washington Examiner. His book on the jurisprudence of Justice Stephen Field was published in 2017 by Lexington. Carrington received his B.A. from Ashland University and his M.A. and Ph.D. from Baylor University. He lives in Hillsdale with his wife and their two daughters.
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Essay 16: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 15-19
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Eric Wise On The Federal Constitution - Volume 1 Part 1 Chapter 8 Sub Chapters 15-19 – Guest Essayist: Eric Wise, 14. De Tocqueville Study, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 130 – 143 of this edition of Democracy in America.
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On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 15-19
“In the hands of seven federal judges rest ceaselessly the peace, the prosperity, the very existence of the Union. Without them, the Constitution is a dead letter…”
– Alexis De Tocqueville
The great observer of the American regime is Alexis De Tocqueville. An observer is most often distinct from a participant. De Tocqueville sees America from the outside.
But to say he sees America from the outside is insufficient. We are invited to ask from what vantage point of the outside does De Tocqueville observe.
It would be easy to conclude he observes from another great young democracy, France. After all, his subject, democracy in America, suggests that democracy is going on somewhere else.
Democracy in America was first published in 1835. This is the period of the July Monarchy in France, which began with the overthrow of one Bourbon monarch, Charles X, to replace him with another Bourbon monarch, Louis Phillipe. De Tocqueville could have accurately titled his book Democracy Today, given that democracy in America was at that time the only democracy game in town.
Why digress so? Because in reading De Tocqueville it helps to understand that, as astute an observer as he is, he is in fact an alien to the system in America. De Tocqueville truly knows only monarchy.
In this spirit he writes, “a federal government ought more than any other to desire to obtain the support of justice, because in its nature it is weaker, and one can more easily organize resistance against it.” Is this observation made because for an observer looking down from a monarchical perch, that is how the American system appears?
“In America, they have put this theory into practice. The Supreme Court of the United States is the sole, unique tribunal of the nation,” writes De Tocqueville. “Sole” reminds us of the root “mono”, which is one half the root of “monarchy”, which means rule of one. This idea foreshadows a potential corruption of the institutions of the United States, which we will get to later.
Let’s look at De Tocqueville’s perspective and then at the possible corruption.
De Tocqueville appreciates how the United States’ federal government and the United States’ state governments are both ground up institutions. That is, each part of the federal system represents delegations of sovereign authority from people to the government. The people of each state lend certain aspects of their sovereignty to the state governments, and the people of the United States lend their sovereignty collectively to the United States.
As De Tocqueville wrote, “The first question which awaited the Americans … was so to divide the authority of the different States…, whilst the entire nation, represented by the Union, should continue to form a compact body, and to provide for the general exigencies of the people.”
This sense of the sovereignty of individuals, which is the basis of consent in America, is bred in the bone. Perhaps the first instance of this practice occurs in Connecticut through the adoption of the Fundamental Orders of Connecticut without any reference to royal authority. As Thomas Hooker, a leading Puritan minister in New England, had said in 1638, well before Hobbes and Locke wrote any jot or tittle on the subject, “The foundation of authority is laid firstly in the free consent of the people.”
That ethos as reflected in the United States Constitution leads to dual sovereignties that are derivative of the sovereignty and consent of the people. With that dual sovereignty comes dual judicial systems, one state and one federal. And while De Tocqueville makes no mention of Puritans such as Hooker, he appears to understand this.
Thus De Tocqueville observes with interest that “It may easily be proved that the Union could not adapt the judicial power of the States….to enforce the laws of the Union by means of the tribunals of the States would be to allow not only foreign but partial judges to preside over the nation.”
But I venture an American of De Tocqueville’s time would have seen this procedurally requirement slightly differently, as they would not have admitted the possibility of a sole power precisely because there cannot be two sole powers, of course. If the sole power of the American regime is the consent of the people, then there is no room for judicial supremacy. De Tocqueville, one dares say, may have mistaken, ever so slightly, or as a modern man might say, subconsciously, the power of the Supreme Court with the power of a king.
This brings us to corruption. At the time De Tocqueville was writing the United States was experiencing a drought of new amendments to the Constitution, new affirmative and formal acts of consent, that began in 1804 and would not end until after the Civil War with the 13th Amendment. To fill the gap, the Supreme Court, after De Tocqueville, handed down the Dred Scott decision to settle once and for all a regime question that could only be resolved through the consent process. Justice Taney, the author of Dred Scott, assured a credulous President James Buchanan that the regime question of popular sovereignty set forth in his Dred Scott opinion, would put to rest the political instability over slavery that troubled the regime. Taney could scarcely have been more wrong.
Today we suffer from a similar drought of amendments, the last fully consummated and unified process for the 26th Amendment having been completed in 1971 (the 27th Amendment having been a drawn-out event that began as the Congressional Compensation Act of 1789). De Tocqueville might see the change as an example of the power of the Supreme Court analogous to a monarch. But from the perspective of an American participant it is hard to unsee it as the ebb of the true sole power in America, the people, which ought to be restored through a process like a convention of states, where the people of the United States might take on regime questions after the manner of the Founders, and in the manner the Founders intended, as reflected in Article V.
J. Eric Wise is a partner in the law firm of Alston & Bird.
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Essay 15: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 11-14
90 in 90 2024, Tara Ross 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 120 (starting at the heading “On The Election of the President”) through 130 (stopping at the heading “On The Federal Courts”) of this edition of Democracy in America.
American presidential elections have grown increasingly contentious in recent years—to say the least! Too many mistakenly blame the Electoral College, but Alexis de Tocqueville’s classic work, Democracy in America, offers a different perspective.
Indeed, his observations about American society in the early 1800s also included warnings that Americans should have heeded—but didn’t. No wonder presidential elections have become so acrimonious.
De Tocqueville, of course, lived at a time when countries around the world were (at least trying to) shake off monarchies, replacing them with elected leaders. Perhaps it’s unsurprising, then, that Democracy in America alludes to the change. A monarchy, with its relatively infrequent change in leadership, at least provides stability. Can a nation elect new leaders once every few years without too much disruption?
In general, De Tocqueville believes that elective systems undermine a nation’s stability, but he notes that this danger has been mitigated in America because presidential power is limited. To the contrary, “the preponderant power resides in the national representation as a whole,” De Tocqueville observes.
The modern American presidency, of course, looks nothing like the one that De Tocqueville studied in the 1830s.
A powerful President, De Tocqueville writes, makes for dangerous election seasons. One human being clawing for power is surrounded by others, also clawing for a piece of that power. “It is clear that the more prerogatives the executive power has,” De Tocqueville explains, “the greater the lure is; the more the ambition of the pretenders is excited, the more also it finds support in a crowd of [those with] secondary ambitions who hope to share in power after their candidate has triumphed.”
America during De Tocqueville’s lifetime didn’t have that problem. To the contrary, he marveled, “[n]o one has yet been encountered who cares to risk his honor and life to become president of the United States, because the president has only a temporary, limited, and dependent power.” The same applies to those who might otherwise want to help a candidate achieve the presidency. “The reason for this is simple,” De Tocqueville concludes, “having come to the head of the government, he can distribute to his friends neither much power nor much wealth nor much glory, and his influence in the state is too feeble for the factions to see their success or their ruin in his elevation to power.”
A too-powerful President can create other dangers, too, because the workings and direction of government become too dependent on a single individual. “The vaster the place that executive power occupies in the direction of affairs, the greater and more necessary its habitual action is,” De Tocqueville concludes, “and the more dangerous such a state of things is. Among a people that has contracted the habit of being governed by the executive power and, even more so, of being administered by it, election could not fail to produce a profound disturbance.”
An election is inherently “a period of national crisis,” De Tocqueville thinks, because everyone becomes overly focused on the approaching election. The interests of the country fall by the wayside. Nevertheless, things are even worse when a President runs for re-election.
He recognizes the dilemma facing the delegates to the Constitutional Convention: If a President is doing a good job, then Americans should have the option to re-elect him. On the other hand, De Tocqueville wonders if the dangers don’t outweigh the benefits.
“Intrigue and corruption are vices natural to elective governments,” he concludes. “But when the head of state can be reelected, the vices spread indefinitely . . . . [the incumbent] borrows the force of the government for his own use. . . . the care of the government becomes a secondary interest to him; his principal interest is his election.”
In an interesting twist, De Tocqueville remains impressed by the “mode of election” for American Presidents, recognizing that the Electoral College “express[es] the real will of the people.” He notes the difficulty in getting a majority to support any candidate “at the first stroke,” especially given the size and nature of the country. Electing a special body (the Electoral College) to make this decision struck De Tocqueville as an efficient process for reaching agreement on a candidate. It would also better reflect the will of the people than legislative selection.
America’s presidential election system, he concludes, “[is] a happy combination that reconciles the respect that is owed to the will of the people with the rapidity of execution and the guarantees of order that the interest of the state requires.”
In short, Democracy in America focuses on two factors that have historically made American presidential elections work: The limited nature of executive power and the structure of the Electoral College. The first of these has been severely undermined, and the second is under attack.
De Tocqueville would surely be unsurprised to learn that elections have turned ugly in recent decades.
Tara Ross is a retired lawyer and the author of several books about the Electoral College, including Why We Need the Electoral College (Regnery Gateway).
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Essay 14: On the Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 7-10 of Democracy in America by Alexis De Tocqueville
Dr. Robert Brescia, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 14: On the Federal Constitution– Volume 1 Part 1 Chapter 8 Sub Chapters 7-10 of Democracy in America by Alexis De Tocqueville– Guest Essayist: Dr. Robert Brescia– Pages 113-120, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar EssayistsEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 113 (starting at the heading “On the Executive Power”) through 120 (stopping at the heading “On the Election of the President”) of this edition of Democracy in America.
Executive Power; a Summary of Alexis de Tocqueville’s Comparison of the U.S. Presidency and the French Monarchy
“The executive power in France extends to everything, like the sovereignty – the king is one of the authors of the law. The president is only the executor of the law.”
“The president is hindered in the sphere of the executive power – the king is free in it.”
“The president possesses great prerogatives that he has no occasion to make use of – in what he does have occasion to execute, he is weak.”
Alexis Charles Henri Clérel, Comte de Tocqueville
It’s helpful to set the stage with the reminder that De Tocqueville was one the 19th century “big thinkers” – A French noble who analyzed political and sociological movements. He had an avid interest in the young United States, particularly its form of government. De Tocqueville was a classical liberal who espoused the governmental form of parliamentary government, wary, though, of the tyranny of the majority when in power. It is difficult, however, to assign a political ideology to De Tocqueville because he straddles the ideals of much of the political spectrum. The time of his visit to America was during the French monarchy (Louis XVIII and Charles X); “between the republics” period – between the First Republic (1792–1804) and Second Republic (1848–1852).
De Tocqueville’s thoughts about the American presidency and the French monarchy
Following are the main points of difference between the U.S. Presidency and the French monarchy that De Tocqueville points out in Democracy in America, starting with what he refers to as the most important difference:
1. Sovereignty in the United States is divided between the Union and the states, whereas among us (in France), it is one and compact. In the United States, the executive power is limited and exceptional, like the very sovereignty in whose name it acts; in France it extends to everything, just like the sovereignty.
2. The king in France really constitutes a part of the sovereign, since laws do not exist if he refuses to sanction them; he is, in addition, the executor of the laws. 3. The king of France participates in the formation of the legislature by naming the member of one house and putting an end to the duration of the mandate of the other at his will. The president of the United States does not concur at all in the composition of the legislative body and cannot dissolve it.
4. The king is represented within the houses by agents who set forth his views, support his opinions, and make his will prevail. The president has no entry into Congress; it is only in an indirect manner that he can influence the legislative process.
5. The power of the king of France has the advantage of longevity over that of the president – this makes the king feared because he wields power for a much longer time. The president is a magistrate who is elected every four years with one exception so far (Grover Cleveland, 1885-89 and 1893-97), while the king of France is a hereditary head – divine right to assume absolute power says it all. Whereas the U.S. president is indirectly elected by the people, the French king is appointed – usually succeeded by an immediate family member.
6. The king of France is the absolute master in the sphere of executive power. The president of the United States is responsible for his actions. French law says that the person of the king is inviolable. Like the Roman Catholic Pope, he is infallible when speaking “ex cathedra” (from the chair). The difference is that while the Pope has only spoken once ex cathedra, the French kings put out many edicts during their reigns. There can be no opposition to his rule.
7. De Tocqueville points out that in France, there must be an accord between the king and the chambers; that anything else invariably leads to an irresolvable struggle. That is not the case in the U.S. but if the U.S. president is of a different political party than the majority in one or two houses of Congress, there certainly is a struggle to get things done.
The framers of our Constitution had placed the utmost importance on the legislative branch and envisioned the executive branch as an action-oriented, puttin-laws-into-force branch of government. They realized that it is one thing to write a law and another to apply it and see that it is obeyed. Basically, the U.S. president is supposed to be a “doer” – an executor. Article II of the Constitution says that the president “must take care that the laws be faithfully executed” and that he must take an oath or affirmation to faithfully execute the Office of President. In our times, there has evolved a notion of the “imperial presidency” which deals with the enlargement of the powers of the office but that flies in the face of the Constitution and is reinforced by the mystique factor of the presidency, especially in recent years. De Tocqueville recognizes that there are “accidental causes that can increase the influence of the executive power – generally that is war because the president acts as the chief of the armed forces.
Summary
Alexis de Tocqueville’s service to our heightened understanding of the U.S. presidency is quite commendable. For example:
“Just now Washington contains the most important men of the whole Union. We no longer seek instructions from them on subjects of which we are ignorant; instead, we reexamine, in conversation with them, everything which we already know, more or less. We settle the doubtful points…”
His service is very valuable because it promotes a prominent level of questioning and “doubt settling” we should be undertaking currently. The nature of our political experiment can be considered as an early form of a complex adaptive system – constantly changing with the identity and the impact of independent variables weighing heavily upon it. That is something that historians do not focus on and something that political scientists should. The U.S. presidency has built up capabilities never imagined in 1832 because our society has become infinitely more complex to manage. Still, many Americans repel the notion of a monarchy as much as they did when King George III was the King of England.
Dr. Robert Brescia is a National Board Certified Teacher (NBCT), serving as Social Studies Department Chair at Permian High School in Odessa, TX. The Governor of Texas re-appointed him to the State Board for Educator Certification (SBEC) for a six-year term. Bob has a doctoral degree with distinction in Executive Leadership from The George Washington University. He also teaches ethics to university students and leadership to organizations.
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Essay 13: On The Federal Constitution – Volume 1 Part 1 Chapter 8 Sub Chapters 5-6
Chris Burkett, 90 in 90 2024, Blog Essay 13: OnTheFederal Constitution- Volume 1 Part 1 Chapter 8 Sub Chapters 5-6 Guest Essayist: Chris Burkett– Pages 110- 113, 2024 - De Tocqueville Study, 14. De Tocqueville StudyEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 110 (starting at the “Legislative Powers heading”) – 113 (stopping at the “On the Executive Power Heading”) of this edition of Democracy in America.
Alexis De Tocqueville: On The Federal Constitution
“In this state of things, what happened was what almost always happens when interests are opposed to reasonings: they bent the rules of logic.” (Alexis De Tocqueville, Democracy in America).
As De Tocqueville notes, the Constitution of the United States is federal in nature. This makes it quite unusual – in fact, unique – among all historical constitutions in Europe. This is so, in part, because Americans have discovered a new understanding of what “federal” means, which in turn requires De Tocqueville to carefully point out to his European readers some subtle characteristics of the Constitution.
De Tocqueville begins to explain the federal nature of the Constitution of the United States by describing what he calls “Legislative Powers.” By this, De Tocqueville means to show how the bicameral Congress is composed of two legislative bodies – a House of Representatives and a Senate – and, though the concurrence of both is needed to pass laws, each has some unique characteristics, responsibilities, and powers. This difference between the two houses of Congress arises from the compound nature of the American political union: it is intended, by the Federal Constitution, to be a union of the whole American people under a national government with national laws, while each of the member states simultaneously retains its own government, laws, and powers.
This compound or “federal” nature of the American Union and Constitution is an important factor in shaping American democracy, but was established legally in the new Constitution as a way to reconcile the natural tension that would exist between a national government and a state government. De Tocqueville reveals how this new kind of federalism came into being, beginning with the first attempts at establishing a government for the Union during the American Revolution. In the years when the Articles of Confederation were legally in effect (1781-1787), disagreements rose to the surface in the Confederation Congress over whether the Union of the American states comprised a real nation or a mere treaty-based agreement between sovereign and independent nation-states. As De Tocqueville writes:
“[T]wo opposed interests were presented to each other. Those two interests had given birth to two opinions. Some wanted to make the Union a league of independent states, a kind of congress, where the representatives of distinct peoples would come to discuss certain points of common interest. Others wanted to unite all the inhabitants of the former colonies into one and the same people.”
These were the prevailing opinions when the Confederation Congress authorized a Federal Convention to meet in Philadelphia in 1787 to discuss amendments to the Articles of Confederation. Delegates such as David Brearly and Robert Paterson of New Jersey, for example, strongly defended the former point of view that, in order to protect the various interests of the states, the Union should be more like a treaty-based league with a very limited general congress. Others, such as James Madison of Virginia, argued for the creation of a national union under a strengthened national government with real legislative powers. From the beginning of the debates at the Convention, when delegates agreed to create a bicameral legislature it became clear that this question would be resolved primarily through the composition of the two bodies of Congress (the House of Representatives and the Senate). Brearly and Paterson, among others, insisted that each state be equally represented in both houses, and that members of each house be selected by the state legislatures, ensuring that the interests of the states would be sufficiently expressed, supported, and protected in Congress. Madison and his supporters, on the other hand, insisted on creating a national government in which each state would be represented proportionally (based, for example, on population) in both houses, and in which state legislatures would select members in either house of Congress.
Ultimately delegates agreed to compromise on these questions (as proposed in part by Roger Sherman and Oliver Ellsworth of Connecticut): the states would be proportionally represented in the House of Representatives by members elected directly by the people; and the states would be represented equally in the Senate by members chosen by the state legislatures. By this compromise the framers established a Constitution that was “partly national, partly federal.” De Tocqueville writes:
“In this state of things, what happened was what almost always happens when interests are opposed to reasonings: they bent the rules of logic. The legislators adopted a middle term that reconciled by force two theoretically irreconcilable systems. The principle of the independence of the states triumphed in the formation of the Senate; the dogma of national sovereignty, in the composition of the House of Representatives.”
With careful insight, De Tocqueville reveals the uniquely complex nature of the Constitution of the United States in the composition of Congress, as an important factor of American democracy.
Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.
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Essay 12: On the Federal Constitution– Volume 1 Part 1 Chapter 8 Sub Chapters 1-4 of Democracy in America by Alexis De Tocqueville
Robert Lowry Clinton, 90 in 90 2024 Essay 12: On the Federal Constitution– Volume 1 Part 1 Chapter 8 Sub Chapters 1-4 of Democracy in America by Alexis De Tocqueville– Guest Essayist: Robert Lowry Clinton– Pages 105- 110, 2024 - De Tocqueville Study, 14. De Tocqueville StudyEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 105 – 110 (stopping at the heading “Legislative Powers”) of this edition of Democracy in America.
“…what is new in the history of societies is to see a great people, warned by its legislators that the wheels of government are stopping, turn its regard upon itself without haste and without fear, sound the depth of the ill, contain itself for two entire years in order to discover the remedy at leisure, and when the remedy is pointed out, submit voluntarily to it without its costing humanity one tear or drop of blood.” (Alexis De Tocqueville, Democracy in America).
Alexis De Tocqueville: On the Federal Constitution
After a brilliant introduction expounding the rise of democratic inclinations in Europe during the centuries leading up to the colonization of America, followed by seven chapters exploring socio-economic, geographical, cultural and political conditions on this side of the Atlantic, De Tocqueville turns to a peremptory discussion of the Federal Constitution in chapter 8. Beginning with the history of the Constitution’s emergence out of the earlier Articles of Confederation, De Tocqueville emphasizes the colonists’ strong connections to England before the War of Independence, noting the sharing of religion, language, mores and laws among the Americans and the English. This sharing, however, was not enough to prevent the War of Independence.
During the War and its immediate aftermath, the Americans were governed by the Articles (written in 1778 and adopted in 1781), which repudiated a complete union in favor of a confederation of individual states. De Tocqueville explains that once the War commenced, the principle of union prevailed anyway in the face of a common enemy. However, when the public danger subsided, states resumed their original and entire sovereignty.
The states disunited proved disastrous, exposing the states to dangers both foreign and domestic. Before long, Congress recognized its’ impotence and called for a convention to address the problems and revise the Articles. The “revision” thus produced by the Convention of 1787 turned out to be a complete replacement of the Articles, resulting in our present written Constitution.
De Tocqueville extols the greatness of the American founders in heeding the warning of the dangers of disunity, acting with resolve yet patience in devising a remedy, and accepting the remedy—though controversial—without bloodshed:
“…. what is new in the history of societies is to see a great people, warned by its legislators that the wheels of government are stopping, turn its regard upon itself without haste and without fear, sound the depth of the ill, contain itself for two entire years in order to discover the remedy at leisure, and when the remedy is pointed out, submit voluntarily to it without its costing humanity one tear or drop of blood.”
After a brief comparison of the American and French Revolutions, attending to the most obvious differences between the two wars, De Tocqueville proceeds to a summary of the Federal Constitution, stressing the crucial distinction between the character of the powers granted to the nation and those left to the states. Since the goal of the nation is to respond to “a few great general needs,” its powers are “simple and easy enough to define”. Since the goals of the state are “multiple and complicated,” thus retaining “the common rule,” their prerogatives cannot be so easily defined. De Tocqueville perceives the inevitability of conflict between state and national governments, and suggests that the Supreme Court was created, in part, to avoid having such disputes left to individual state courts.
Relying heavily on The Federalist, De Tocqueville examines more closely some of the intricacies presented by this constitutional system. For example, some national powers are made exclusive, others not. Where national power is not exclusive, states can govern freely, subject to the intervention of courts if they abuse their freedom and “compromise the security of the entire Union.” Thus the Federal Constitution establishes both a republic and a confederation, both federal and confederal.
De Tocqueville closes his section on federal prerogatives by giving some examples suggesting that on some points (e.g., having a single national court to interpret the law and a single legislature to impose taxes on everyone and commercial regulations on the states), the American Union is more centralized in some ways than some European monarchies! Though this seems a bit of a stretch, maybe not. Perhaps De Tocqueville was echoing the earlier fears of the Anti-federalist “Brutus” when he suggests in the one-sentence section that follows (entitled “Federal Powers”) that it might be difficult to confine the national government to the exercise of its delegated powers?
In sum, De Tocqueville’s preliminary remarks on the Constitution are generally sound and most helpful in drawing attention to the most important feature (and problem) of the constitutional order it established: the dual sovereignty embodied in the federal system. And in the last analysis, his cautionary suggestion about the difficulty of preventing future concentration of power in the national government would prove fully justified.
Robert Lowry Clinton is Professor Emeritus at Southern Illinois University Carbondale. He is the author of Marbury v. Madison and Judicial Review, God and Man in the Law: The Foundations of Anglo-American Constitutionalism, and numerous articles in academic and popular publications.
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Essay 11: On Political Judgment in the United States Volume 1 Part 1 Chapter 7 of Democracy in America by Alexis De Tocqueville
90 in 90 2024, Andrea Criswell, 6. Guest Constitutional Scholar Essayists, Blog 2024 - De Tocqueville Study, Andrea Criswell, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 100 – 104 of this edition of Democracy in America.
Alexis De Tocqueville: On Political Judgment in the United States
“[Political jurisdiction is] to withdraw power from someone who makes a bad use of it and to prevent this same citizen from being vested with it in the future.” (Alexis De Tocqueville, Democracy in America).
“Take one for the team”! Maybe Washington, maybe Hamilton, patented this unheard of paradigm shift, but the idea set in motion a constitutional republic that would require more from the elected than any other time in history. Adding a unique feature, in regard to public officials, the Founders took it a step further, one that would keep democracy on the up and up. Alexis De Tocqueville recognized this feature, he caught the nuance in regard to political jurisdiction saying it is, “to withdraw power from someone who makes a bad use of it and to prevent this same citizen from being vested with it in the future.” It allowed public servants to be judged among their elected peers, without criminalizing them. In America’s version of political jurisdiction it could not be used as a partisan weapon, it required deep trust of the elected, and it tethered leaders to a higher accountability. These three distinctions will be considered here.
Be slow to impeach. The temptation to override is currently strong in the political atmosphere. Take what you want politically by force. The Founders feared this, and set in motion a unique take on political jurisdiction which would require a respect for the law no matter who was elected. If the people, by free and fair elections, selected a person to govern, then that person should be protected from impeachment being used as a partisan weapon. It is this very reason that only the public official called forward by the House of Representatives can be labeled an offender. Protecting against false accusations, the Senate judges the offense. What surprised De Tocqueville was that this only included removal from office, not justice through the penal code. The House could call for impeachment, and the Senate could enact impeachment, but neither could take away the personal liberties of the offender. That was out of their jurisdiction. Radically different from the structures in both England and France, the Founder’s plan limited impeachment for the purpose of protecting the choice of the governed.
Trust the law. In times of uncertainty, the governed must trust the checks and balances of the law and not take matters into their own hands. Obedience to authority is a wonderful fail safe when the elected is your chosen candidate, but when your candidate is not chosen, it requires great maturity to work under the leadership of someone you do not agree with. Order is a protective measure against chaos. It blesses all who sit in its shade. The shade as seen in political jurisdiction in the United States is that the leaders are tethered to something greater than themselves, the law, which supersedes agenda. Usurpation is only acceptable when the elected dishonor the law. However, in modern America trust in elected leadership has been broken and most of the governed do not understand the law. This is a concerning combo that the Founders feared.
To hold office. A little phrase with great power. When seen through a lens of selfish ambition this power brings an elected person self-promotion. Seen through the lens of service, it garners benefit for the governed. Political jurisdiction is intended to protect the elected while establishing office void of selfish ambition. What a difference a lens can make. This is where free and fair elections apart from gerrymandering are so important. The balance between recognizing the possibility of human failure and the tension between freedom of choice and the law is real. The elected person is imperfect, but the law holds their imperfection in check. Accordingly, political jurisdiction is, in De Tocqueville’s words, “despite its mildness and perhaps because of its mildness, a very powerful arm in the hands of the majority.”
This is not “your father’s” democracy. Liberty requires more. The republic is a standard of law for all people, to be honored and upheld equally by both the elected and the governed. It was understood that the elected would place their own natural tendencies aside out of respect for the law, and that the governed would place their natural tendencies aside out of respect for the elected. This mutual agreement of giving and receiving would allow them to accomplish something the world had never seen. De Tocqueville reminds us today that America’s system of political jurisdiction sets American democracy apart. If it breaks down, she will become just like other democracies. Without this unique balance, America will not embody liberty in its truest form.
Andrea Criswell is a wife, mother, and homeschool teacher in the northwest Houston area. Graduating from both Texas Tech University and Asbury Theological Seminary, she teaches Christian Worldview classes. Her passion is helping high school students become responsible young adults who critically think and learn how to solve problems.
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Essay 10: On Judicial Power in the United States and Its Action on Political Society – Volume 1 Part 1 Chapter 6 of Democracy in America by Alexis De Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Kevin R. C. Gutzman, M.P.Aff., J.D., Ph.D. Essay 10: On Judicial Power in the United States and Its Action on Political Society – Volume 1 Part 1 Chapter 6 of Democracy in America by Alexis De Tocqueville – Guest Essayist: Kevin Gutzman, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, Kevin R. C. Gutzman M.P. Aff. J.D. PhDEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 93 (starting at chapter 6) through 99 of this edition of Democracy in America.
Alexis De Tocqueville entitles Volume One, Part One, Chapter 6 of Democracy in America “On Judicial Power in the United States and Its Action on Political Society.” He attempts to describe American judicial institutions as if they were all of one model, along the way comparing them to the French courts more familiar to him and to his intended readers. Particularly notable to De Tocqueville as a foreign observer was the political role of American courts that we Americans have come to take for granted. “ The judicial power[‘s] … political power is so great,” he explains, “that it appeared to me that to speak of it in passing would diminish it in the eyes of readers.”
Federal, republican, and elective governments are not peculiar to America, this Frenchman notes, but the American judiciary is unique. Its weight is felt in every political discussion. In regard to particular cases, it exercises its power as other countries’ judiciaries do — “as an arbiter” between parties, “on particular cases and not on general principles” (that is, not on an advisory or legislative basis), and “only when it is appealed to” (that is, when a case is properly brought before it).
Yet, American judges, De Tocqueville insists, have political power of a remarkable kind: “Americans have recognized in judges the right to found their rulings on the Constitution rather than on the laws.” What he has in mind is that American judges exercise the power of judicial review, which he classifies as political, not legal. To an American, this distinction is jarring. We have all been indoctrinated in the idea, captured in Article VI of the United States Constitution and forcefully said to have been the bedrock of judicial review by Chief Justice John Marshall in Marbury v. Madison, that judicial review is precisely a legal function, that what is happening when a judge says a statute is to be inoperative (“struck down”) on the basis of unconstitutionality is that inferior law is being made to yield to superior law. As Marshall put it, “It is emphatically the duty of the Judicial Department to say what the law is. Those who apply the rule to particular cases must, of necessity, expound and interpret the rule. If two laws conflict with each other, the Court must decide on the operation of each. If courts are to regard the Constitution, and the Constitution is superior to any ordinary act of the legislature, the Constitution, and not such ordinary act, must govern the case to which they both apply.”
It was by political acts that the sovereign states, following the Article VII ratification process, put the U.S. Constitution into effect, yes, but determining whether a law is constitutional in a case brought before it by one of the parties is for an American court a legal task, not a political one. De Tocqueville essentially concedes this point without making it when he notes that in America the people can, when they so desire, change a constitution (state or federal).
After comparing the relationships between law and constitution in the American system to the relationships between law and constitution in France and in Britain, De Tocqueville asserts that there is little to fear from judicial decisions holding laws unconstitutional, as they will only affect the particular cases the judges are deciding. Whether a statute will be repealed because unconstitutional is a question that will only be decided after several related cases have been adjudicated. Here our author is simply mistaken: decisions holding statutes unconstitutional have commonly had immediate and general effect since American courts first exercised the power of judicial review.
De Tocqueville next asserts that judges exercise the power of judicial review only despite themselves. They have no impulse to do so, he says. We are familiar with numerous instances in which Americans certainly were, or at least seem to have been, anxious to exercise the power of judicial review. At least one of them, the Supreme Court case of McCulloch v. Maryland (1819), ought to have been known to De Tocqueville. There had already been numerous cases of judicial review in federal courts by the 1830s, when De Tocqueville wrote his book, and they have come to be quite numerous now.
De Tocqueville closes this chapter with consideration of Article 75 of the French Constitution of year VIII (1799), which made Napoléon Bonaparte first consul. Under that constitution, he says, a government official could only be tried after the Council of State had decided he could. American courts have no need of such permission, he notes.
Kevin R. C. Gutzman, J.D., Ph.D. is Professor and former Chairman in the Department of History, Philosophy & World Perspectives at Western Connecticut State University. He is the author of six books in the history of the American Revolution and Early Republic, one of which was a New York Times bestseller, two of which were book club main selections, and one of which was named one of the ten outstanding conservative books of 2007. His latest is The Jeffersonians: The Visionary Presidencies of Jefferson, Madison, and Monroe.
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Essay 9: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapter 12 of Democracy in America by Alexis De Tocqueville
90 in 90 2024, Jay McConville, 6. Guest Constitutional Scholar Essayists, Blog Essay 9: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapter 12 - Guest Essayist: Jay McConville, Raul Rodriguez, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar EssayistsEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 82 (starting at the heading “Administrative Decentralization”) – 93 (stop at chapter 6) of this edition of Democracy in America.
Alexis De Tocqueville: Administrative Decentralization and the Character of the United States.
“What I admire most in America are not the administrative effects of decentralization, but its political effects” (Alexis De Tocqueville, Democracy in America).
Alexis De Tocqueville’s Democracy in America is an insightful examination of American society and its political institutions. In “The Necessity Of Examining What Happened In Individual States Before Considering The Union As A Whole – Political Effects Of Administrative Decentralization In The United States,” De Tocqueville emphasizes the importance of understanding the political structures at the state level before attempting to grasp the nature of the American Union. His admiration for the political effects of the American decentralized system highlights the importance of democratic participation and local governance over mere administrative efficiency.
In times of increasing political polarization, complexity of governance, and rising public debt, it is natural to look for ways to reduce redundancies and centralize operations. That has led many to question the effectiveness of the federalist system, especially given modern communications technologies. It is no longer difficult to communicate, as it was at our founding for example, between federal authorities and local communities. De Tocqueville was one of the first to observe that the division of powers among national, state, and local authorities in America could lead to inefficiencies in governance. After detailing some examples of this division, he readily admits that “the villages and counties of the United States would be more usefully administered by a central authority…” Yet De Tocqueville knew such efficiencies were not the most important aspect of government, but that instead, “individual forces [are] joined to the action of social forces,” and that when joined, “they often succeed in doing what the most concentrated and most energetic administration would be in no condition to execute.”
Laboratories of Democracy
Supreme Court Justice Louis Brandeis popularized the phrase “laboratories of democracy” in the 1932 Supreme Court case New State Ice Co. v. Liebmann. His emphasis, like many of today’s writers, was on effectiveness and efficiency. “It is one of the happy incidents of the federal system that a single courageous State may, if its citizens choose, serve as a laboratory; and try novel social and economic experiments without risk to the rest of the country,” wrote Brandeis. This has often been cited as a reason to maintain what is otherwise an inefficient diffuse administrative state, as well as for leaving as much power locally as possible. Brandeis wrote, “[m]erely to acquire the knowledge essential as a basis for the exercise of this multitude of judgments would be a formidable task…Man is weak, and his judgment is, at best, fallible.” Brandeis’ opinion echoes much from De Tocqueville who wrote, similarly, that “[a] central power, however enlightened, however learned one imagine it, cannot gather to itself alone all the details of the life of great people. It cannot do it because such a work exceeds human strength. When it wants by its care alone to create so many diverse springs and make them function, it contents itself with a very incomplete result or exhausts itself in useless efforts…” Thus, an over-centralized state “excels, in a word, at preventing, not at doing.”
Reading Democracy in America, it becomes clear that while De Tocqueville and Brandeis might agree on the benefits of decentralization, De Tocqueville emphasized its role in fostering democratic participation as the primary benefit.
The Character of the Nation
De Tocqueville’s analysis of administrative decentralization compared the distinctive nature of American governance to European nations, where administrative power was often concentrated in the hands of a few. American decentralization, to De Tocqueville, was not just a matter of convenience but a deliberate strategy to promote democratic participation. European citizens, controlled by a centralized authority, often viewed their condition as akin to being a “colonist, indifferent to the destiny of the place that he inhabits.” The citizen’s connection to the nation was therefore suspect, reliant more on tradition than a genuine belief that his nation was his own. Longevity for the nation was therefore tenuous, as its governance “[does] not concern him in any fashion,” and “belong[s] to a powerful foreigner called the government.” As a result, European citizens found themselves “swinging constantly between servitude and license.”
De Tocqueville was more bullish on the American nation, even as tradition might fade, because, unlike Europeans, the American “applies himself to each of the interests of his country as to his very own… He has for his native country a sentiment analogous to the one that he feels for his family, and it is still by a sort of selfishness that he takes and interest in his state.” Americans believe, in the words of Abraham Lincoln, that this is a nation “of the people, by the people, [and] for the people.”
Out of Many, One.
True, federalism ensures a check on national authority and guards against tyranny. Additionally, decentralization promotes a more responsive and accountable government.
Most importantly, however, decentralization fosters a political culture of what we would today call buy-in – that deeply held belief that this is our nation, that we are not subjects, but full participants in its success now and into the future. It fosters civic responsibility and engagement, and develops a habit of self-governance, responsibility, and accountability. De Tocqueville saw this buy-in as essential for the sustainment of democracy and knew, like many today, that such self-reliance should never be sacrificed on the altar of efficiency.
Jay McConville is a former soldier, political activist, and business executive who writes on Substack at Goose & Gander (jaymcconville.substack.com). He is also a fitness trainer and a doctoral candidate at the L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. Jay has served for more than seven years on Constituting America’s Governing Board of Directors.
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Essay 8: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 9 to 11 of Democracy in America by Alexis de Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Scot Faulkner Essay 8: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 9 to 11 - Guest Essayist: Scot Faulkner, Raul Rodriguez, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar EssayistsThe essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 79 (starting at the heading “On The State”) through 82 (stop at the heading “Administrative Decentralization”) of this edition of Democracy in America.
The core of America’s federal system of government is viable state governments. America is called “the United States” to institutionalize the importance of distributed and diverse state governance as a balance to centralized power.
De Tocqueville fully understood this unique America concept by declaring “The Necessity of Examining What Happened in Individual States Before Considering the Union as a Whole”.
State legislatures, except Nebraska, mirror the two legislative chambers at the national level. In 1934, Nebraskans voted to merge their two legislative houses determining unicameralism would be more efficient and cheaper.
The concept of two legislative chambers, at both the national and state levels, began with the Royal Charter that established Jamestown in Virginia. It evolved from the Charter holders into governance by the King’s Representative (Royal Governor) and his Advisory Council. This evolved into the Senate at both the national and state level.
As De Tocqueville explains:
“The Senate is usually a legislative body; but sometimes it becomes an administrative and judicial body.”
A state’s House of Representatives, called the House of Delegates in some states, also has its roots in Jamestown. When the settlers demanded their own voice, the Virginia House of Burgesses, in 1619, became the first democratically elected legislative body in America.
De Tocqueville explains the difference:
“The other branch of the legislature, ordinally called the House of Representatives, participates in no administrative power and takes part in judicial power only by accusing public officials before the Senate.”
The House of Burgesses became a proving ground for what would become the “lower house” at the national and state levels. “Upper” and “Lower” house designations were derived from their location within Jamestown’s legislative building. The House of Burgesses was located on the ground floor while the Governor’s Advisory Council met on the second floor.
Drawing from British tradition, the members of the House held their positions for shorter periods of time to be held closely accountable by those they represented.
De Tocqueville explains:
“By granting to the senators the privilege of being chosen for several years, and being renewed seriatim, the law takes care to preserve in the legislative body a nucleus of men already accustomed to public business, and capable of exercising a salutary influence upon the junior members.”
James Madison and Alexander Hamilton, writing under the pseudonym “PUBLIUS”, outlined this binding of the House of Representatives more closely to those they served in Federalist No. 52:
“Frequent elections are unquestionably the only policy by which this dependence and sympathy can be effectually secured…. It is a received and well-founded maxim, that where no other circumstances affect the case, the greater the power is, the shorter ought to be its duration.”
This unique legislative environment of having different terms and therefore different mandates/perspectives was considered a strength by de Tocqueville:
“To divide legislative strength, thus to slow the movement of political assemblies, and to create a court of appeal for the revision of laws – such are the sole advantages that result from the current constitutions of the two houses in the United States.”
De Tocqueville embraced the universal wisdom of how America’s state legislatures governed:
“This theory, nearly ignored in ancient republics, introduced into the world almost haphazardly like most great truths, unknown to several modern peoples, has at length passed into the political science of our day as an axiom.”
De Tocqueville then turns his attention to state governors.
He outlines the governor’s role as a “moderator and counsel”. This is very different from the powerful Royal Governors they replaced. Governors serve as a counterbalance to the legislature as each chamber balances each other. This institutionalized series of “checks and balances” creates a web of accountability at both the state and national level. The lessons learned from royal overreach were embedded to prevent future tyranny.
Governors also have the power to “stop or at least to slow movement” of legislation. This check on legislative power arises from the lessons learned from the English Revolution (1640-1660) when Charles I’s royal tyranny was replaced with Oliver Cromwell’s legislative dictatorship.
A governor, in their role as moderator, do set “out the needs of the country to the legislative body and makes it known what means he judges useful to employ in order to provide for them.” The legislature’s role is to approve or reject the governor’s agenda, serving as a balance to executive power.
De Tocqueville, who had previously outlined the importance of local government in America, explains that “the governor does not enter into the administration of townships and counties”.
Each level of government in America has its own role, power, and independence. From the national level on down to local communities, America’s strength is a structure that prevents centralized tyranny.
Scot Faulkner was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. He is Vice President of the George Washington Institute of Living Ethics at Shepherd University and the President of Friends of Harpers Ferry National Historical Park.
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Essay 6: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 1 to 5 of Democracy in America by Alexis de Tocqueville
Raul Rodriguez, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 6: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 1 to 5 - Guest Essayist: Raul Rodriguez, Raul Rodriguez, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar EssayistsEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 56 – 65 of this edition of Democracy in America, and stops at the heading “On The County In New England.”
De Tocqueville’s study of townships in America is justly famous. He allows Americans to have pride in where they come from and in their history. He champions the idea of local civic participation and shows how it is a core element of American prosperity. The town, he tells us, is the key to understanding what true freedom is and fostering it in a democracy. This is a bold claim. Let us see what de Tocqueville has to teach us.
De Tocqueville states that one must look at the individual states prior to looking at the national government to understand America. De Tocqueville recognizes that the United States has a unique constitution that grants political power to states and the national government. The federal character of the US Constitution is one of the strengths of America. This virtue of America is better understood by examining not only the states, but also the towns and counties that make up the state. The local character of America, we will learn, gives America vitality and fosters freedom.
De Tocqueville memorably states that townships are “the sole association that is so much in nature that everywhere men are gathered, a township forms by itself.” Because towns are so natural, they exist in all societies. The town, he even declares, “appears to issue directly from the hands of God.” Despite the natural, or providential, character of towns, “the freedom of a township is a rare and fragile thing.” Town liberty requires citizens to come together and to fix their own problems. The difficulty with this is that towns often make mistakes. A large and sophisticated country “tolerates only with difficulty the trials of freedom in a township.” The authority overseeing a town often thinks that it can govern in a faster and more efficient way. As a result, town liberty is vulnerable to “the invasions of power”” (57). Town liberty, in other words, does not last long. What is amazing is that in America, town liberty still existed when de Tocqueville visited and he had reason to believe that it could possibly be maintained, albeit with considerable effort.
Rather than disparage the dysfunctional and provincial character of local towns, de Tocqueville praises them. De Tocqueville agrees that a centralized nation can sometimes get things done faster, but such a nation loses the spirit of liberty. There is something about liberty that requires small, local action by citizens. He memorably tells the reader that towns prepare citizens to be truly free:
“The institutions of a township are to freedom what primary schools are to science; they put it within reach of the people; they make them taste its peaceful employ and habituate them to making use of it. Without the institutions of a township a nation can give itself a free government, but it does not have the spirit of freedom” (57-58).
Freedom is not easy—it requires apprenticeship. Towns provide citizens with an opportunity to practice being free. Localism is a key ingredient to freedom.
The New England Township is elevated as a paragon of liberty. Numbering between two and three thousand inhabitants, New England is the epitome of local political action. De Tocqueville says that “the law of representation is not accepted” in the New England township. Citizens are their own masters and they unite to rule over themselves. This pure form of local freedom is unheard of in Europe and most of the world, de Tocqueville tells us. Ordinarily, citizens see problems, but have no power to fix them. In the township, citizens see a problem, come together to discuss the problem and to vote on how to fix it immediately. This fact of the township teaches citizens how to be powerful and independent. To be free means to have the power and independence to take action.
In the cosmopolitan world that we now live in, it can be hard to see the virtue of local towns. De Tocqueville helps us have a new perspective. He challenges us to reexamine, to rethink, what it means to be free. For de Tocqueville, freedom is not simply the right to do whatever you want, but the ability to take action with our fellow citizens to accomplish something good. By vindicating town life, de Tocqueville provides us with a practical means by which to learn and practice civic freedom. He also gives us a warning—local liberty is hard to keep. If citizens allow local decisions to be taken out of their hands, they may never get it back. Actively participating in town governance can be annoying and tiresome, but we should be wary of giving it up for the sake of convenience. Freedom requires vigilance, and even mistakes. Our small towns provide us with a space to practice the art of being free. De Tocqueville admonishes us: Return to your local communities—you will find freedom there!
Raúl Rodríguez is an Assistant Professor in the School of Civic Leadership at the University of Texas at Austin. He received his Ph.D. at the University of Notre Dame and his B.A. at Furman University. Dr. Rodríguez’s research and teaching focus on the classic texts of political philosophy and constitutional studies. His current book project is titled Redeeming Democracy: Tocqueville’s New Liberalism.
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Essay 7: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 6 to 8 of Democracy in America by Alexis de Tocqueville
Charles Hurt, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 7: Necessity of Studying What Takes Place in the Particular States before Speaking of the Government of the Union – Volume 1 Part 1 Chapter 5 Subchapters 6 to 8 - Guest Essayist: Charles Hurt, Raul Rodriguez, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar EssayistsEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references page 65 (starting at the heading “On The County In New England”) through page 79 (stop at heading “On The State”) of this edition of Democracy in America.
Anyone who has worked as a reporter for newspapers — from small town weeklies to big city dailies — can tell you that few things are more boring than the civic affairs of a tiny New England township. It’s existence, one might say, is “obscure and tranquil.” Yet, curiously, it is also the object of “lively affections” from the citizens who inhabit the township. We are reminded of this intense pride over a township’s mundane civic obligations every four years when the dutiful people of Dixville Notch, New Hampshire, trundle out into the deep snows near the remote Canadian border at midnight on a Tuesday to cast and count the first half dozen or so ballots in the nation’s presidential primary. It’s an affair bursting with so much pride among the townspeople as to seem like a Taylor Swift concert — even compared to that always show-boating Punxsutawney Phil predicting the end of spring down near Young Township closer to the end of winter in balmy Pennsylvania. To the outside cynic, the voters of Dixville Notch very often get it wrong and never has a primary come down to those first six or 11 votes cast by those hardy citizens. Yet the townspeople of Dixville Notch are undaunted and persevere every four years as if the life of the Republic depended upon it.
Because it does.
The “obscure and tranquil” nature of the New England township — and the “lively affections” inspired among its citizens — caught the jealous attention of French aristocrat Alexis de Tocqueville when he traveled to America in 1831 to study this budding new Republic. He was in awe of such curious behavior as if he were an explorer on a safari observing strange, new wild animals in their native habitat.
“The township is the hearth around which the interests and affections of men come to gather,” he observed.
Coming from a continent of aristocratic bloodlines, 1000-year religious wars, feudal fiefdoms and kingly realms with bejeweled crowns and walled cities, de Tocqueville considered this New England township in America a truly strange creature. What was the source of cohesion among its citizens? From where did such intense pride spring? How did they know what to do? Where was the castle? It is worth noting that many of these townships predated the republic to a time when they were remote, unwalled outposts in a vast kingdom loosely governed by a king whose palace was an ocean away. Even then, they were kind of on their own. While they were taxed by the king and had fealty to him, they were entirely on their own when it came to finding practical solutions to the very real problems they faced in daily civic life. It was this very whiff of practical independence that would become the wind that fueled the wildfire of freedom on the American continent.
“The revolution in the United States was produced by a mature and reflective taste for freedom, and not by a vague and indefinite instinct of independence,” de Tocqueville observed. “It was not supported by passions of disorder; but, on the contrary, it advanced with a love of order and legality.”
In the plain New England township, titles were loathed. Instead of Lords and Dukes, the officers of the township are called “justice of the peace” and “selectman.” Degrees in received wisdom were viewed with special suspicion.
“The justice of the peace is an enlightened citizen, but who is not necessarily versed in knowledge of the law,” de Tocqueville noted. “So they charge him only with keeping the order of society, a thing that demands more good sense and rectitude than science.”
The justice of the peace and the selectman is stripped of all “aristocratic character,” he writes.
In particular, de Tocqueville was struck by the “primitive” nature of the township and the “practical” matters so dutifully taken up by regular townspeople. If a road or a bridge washed out, who would fix it? Certainly not a king in some faraway land of fairy tales. The road had to be fixed and fixed fast so that the farmer could get his grain to the miller’s grist mill on the far side of the stream so that bread could be made so that the people of the township could eat. It was that simple. Practical self-interest was the social compact. Certainly, high ideals such as independence, life and liberty were sacred in the new Republic. But those principles alone would ultimately perish if all the townspeople starved to death. In the old country, governments and kings were forever justifying their existence and brutally confirming their authority. In this strange new country fueled by human nature and reigned by self-determination, government was a lowly affair entirely justified by its ability to ensure basic freedoms while solving practical problems that would clear the path to prosperity for the townspeople.
“In the bosom of the profound peace and material prosperity that reign in America, the storms of municipal life are few,” de Tocqueville wrote.
Obscure and tranquil? Yes. Even boring? Perhaps. But free.
Charles Hurt is the Opinion Editor and a columnist for The Washington Times. Often seen as a Fox News contributor on the cable network’s signature evening news roundtable, Mr. Hurt in his 20-year career has worked his way up from a beat reporter for the Detroit News and Washington correspondent for the Charlotte Observer before joining The Washington Times in 2003. He later served as D.C. bureau chief and White House correspondent for the New York Post and editor at the Drudge Report.
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Essay 5: On The Principle Of The Sovereignty Of The People In America – Volume 1 Part 1 Chapter 4 of Democracy in America by Alexis de Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 5: On The Principle Of The Sovereignty Of The People In America – Volume 1 Part 1 Chapter 4 of Democracy in America by Alexis de Tocqueville - Guest Essayist: Andrew Langer, 2024 - De Tocqueville Study, 14. De Tocqueville Study, Andrew LangerEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references start at the chapter four heading on page 53 and goes through page 55 of this edition of Democracy in America.
Alexis de Tocqueville’s seminal work, Democracy in America, offers a profound examination of the American political system, with particular emphasis on the principle of the sovereignty of the people. In Volume 1, Part 1, Chapter 4, de Tocqueville explores how this principle functions in the United States, attributing much of its success to the decentralized nature of American government, particularly through the institution of townships.
De Tocqueville identifies townships as the foundational units of American democracy, embodying the principle of the sovereignty of the people. He describes them as independent entities endowed with significant local autonomy, handling functions such as tax collection, school management, and road maintenance. This level of local governance contrasts sharply with the centralized administration prevalent in France, where the state manages most functions.
The autonomy of American townships, according to de Tocqueville, fosters widespread civic participation. He notes that almost every citizen is involved in some aspect of local governance, which serves as an essential educational tool. Through active participation in township affairs, citizens practice self-governance, develop a deeper understanding of their rights, and cultivate a sense of public spirit. This civic engagement strengthens democratic institutions from the ground up, reinforcing the principle of popular sovereignty.
Thomas Jefferson, one of the foremost advocates for states’ rights and local governance, argued for the devolution of power to states and localities within America’s federal system. Jefferson believed that the best government is one that is closest to the people, where citizens have the most direct control over their affairs. He saw local governance as a means to educate and engage citizens in the political process, thereby fostering a more vibrant and resilient democracy.
Jefferson’s vision aligns with de Tocqueville’s observations on the role of townships. By decentralizing power and granting autonomy to local governments, the American system ensures that citizens are not merely subjects of distant authorities but active participants in their governance. This decentralization, or dual sovereignty, creates a balance between national and local interests, promoting liberty and preventing the concentration of power.
The principle of federalism, which underpins the American political system, involves the distribution of power between the national government and the states. This diffusion of power is crucial in securing individual liberties. The 1992 Supreme Court case, New York vs United States, Justice Sandra Day O’Connor highlighted this aspect of federalism, stating that “Federalism secures to individuals the liberties that derive from the diffusion of sovereign power.” This case underscored the importance of maintaining a balance between centralized authority and local autonomy to protect individual freedoms.
In de Tocqueville’s analysis, the sovereignty of the people is most evident in the functioning of townships. These local units of government embody the principle of subsidiarity, where decisions are made at the most immediate level possible, thus promoting individual freedom and responsibility. The townships’ ability to manage their own affairs without excessive interference from higher levels of government exemplifies this diffusion of power.
De Tocqueville emphasizes the educational role of townships in American democracy. By engaging in local governance, citizens learn the practicalities of democratic participation. They develop skills in deliberation, negotiation, and decision-making, which are essential for the functioning of a healthy democracy. This hands-on experience in governance is invaluable in cultivating informed and active citizens.
Moreover, de Tocqueville observes that the local independence of townships nurtures a strong sense of community and public spirit. Unlike the centralized bureaucratic systems in Europe, where citizens often feel detached from their government, American townships foster a direct connection between the people and their representatives. This connection enhances accountability and responsiveness, further reinforcing the principle of popular sovereignty.
De Tocqueville contrasts the decentralized township system with the highly centralized administration in France, highlighting the benefits of the American approach. In France, the central government’s extensive control over local affairs stifles civic participation and inhibits the development of local leadership. In contrast, the American township system encourages local initiative and responsibility, creating a dynamic and participatory political culture.
This decentralization serves as a counterweight to potential abuses of power by the central government. By distributing authority across multiple levels of government, the American system prevents the concentration of power in a single entity, thus safeguarding individual liberties. This balance is essential for the maintenance of a free and democratic society.
The principle of the sovereignty of the people in America is intricately linked to the role of townships in the nation’s federal system. De Tocqueville’s observations highlight the significance of local autonomy and civic participation in fostering a vibrant democracy. Through the devolution of power, as advocated by Thomas Jefferson, and the diffusion of sovereign power emphasized in the New York vs United States case, the American system of federalism secures individual liberties and promotes active citizenship.
Townships, as the foundational units of American democracy, provide a practical and effective means for citizens to engage in self-governance. This decentralized approach not only enhances local governance but also serves as a critical educational tool, preparing citizens for broader political participation. Ultimately, the success and stability of American democracy rest on this delicate balance between local autonomy and centralized authority, ensuring that the sovereignty of the people remains at the heart of the nation’s political system.
Andrew Langer is a long-time contributor to Constituting America’s annual studies on the Constitution. Currently, he serves as Director of the Center for Regulatory Freedom at the CPAC Foundation, as well as the host of several podcasts, including the Federal Newswire’s “Lunch Hour” podcast and “Andrew and Jerry Save the World.”. For nearly a decade, he was the host on WBAL Newsradio 1090 in Baltimore, and still fills-in regularly for radio shows across the country. A graduate of William & Mary with a degree in international relations, he has taught regulatory policy at the university level.
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Essay 4: Social State Of The Anglo-Americans – Volume 1 Part 1 Chapter 3 of Democracy in America by Alexis De Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 4: Social State Of The Anglo-Americans – Volume 1 Part 1 Chapter 3 of Democracy in America by Alexis de Tocqueville - Guest Essayist: Joerg Knipprath, 2024 - De Tocqueville Study, 14. De Tocqueville StudyEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 45 (start at chapter 3 heading) – 53 (stop at chapter 4 heading) – of this edition of Democracy in America.
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De Tocqueville long has had the deserved reputation of an insightful early observer of the United States and its people. His discussion of the social condition of Americans and its influence on their personal and political character is a case in point. De Tocqueville uses this chapter as an introduction to a further and more detailed analysis later in the book. Although De Tocqueville’s account is informative and illuminating, one must be conscious of its author’s limitations. In various particulars, his remarks are outdated due to no fault of his, having been overtaken by significant social and technological events. Some are likely incorrect, and yet others reach conclusions more comprehensively explained by other developments. Moreover, as the typical current discussion of historical events sadly demonstrates, it is difficult to rise above one’s own cultural background, biases, and attitudes, for us no less than for De Tocqueville.
De Tocqueville’s main theme in this chapter is the mutually reinforcing relationship of American social conditions, the character trait of seeking equality, and the political tendency in favor of democratic government. To develop that theme, he attributes considerable importance to changes in the law of inheritance at the time of the American Revolution. Indeed, as he describes, American states generally abandoned feudal English practices of entail and primogeniture.
Although this is not an essay on English land law, a very brief and, admittedly, superficial foray into the subject is useful. Entail allowed “dead-hand control” in that a landowner would convey his property (in practice it usually—but not always—was a male landowner) to someone with the proviso that the recipient could transfer the land only to his kin (usually his issue). That kin could only transfer to their own kin, and so on, within the structure of primogeniture. The entail could keep landed estates within the family and preserve the family’s land based status.
Primogeniture required that, in general, the entire landed estate went to the eldest son. If there was no son, a more curtailed estate would go to any daughters. Those daughters’ interests then would go to their eldest sons. This system helped to prevent estates from being broken up into undesirably smaller parcels over time. However, as De Tocqueville points out, it also fostered economic inequality among family members and social inequality between the great landed nobility and the rest of society, including the emerging commercial bourgeoisie. At the same time, primogeniture had the—probably unintended—consequence of pushing the younger sons of the nobility into the military, the legal profession, or the church. Much of England’s imperial success was engineered by those who were deprived by primogeniture of inherited landed wealth.
Complex interrelated changes in European society gradually produced an economically powerful and politically restive commercial elite. Money and trade became the focus of enterprise and wealth. With the decline of feudalism, land became more commodified. Entail and primogeniture survived in some relic form in England into the 20th century. However, they already had lost their vitality long before De Tocqueville wrote, due to changed social conditions and through the creativity of English lawyers.
Attempts to plant the English law of land tenures in American colonies occurred but fell on inhospitable soil. Not all colonies were initiated by English noblemen. Even within the proprietary colonies, the authority of the lords proprietor was challenged almost from the beginning by the settlers who, whether farmers, merchants, artisans, or mechanics, represented a broad middle class and who did not shy from using their numbers and their taxes for political leverage. Moreover, the English families mostly remained in the old country, several thousand miles across the ocean. There arose some economically and politically powerful American families of Dutch descent in New York and English descent in Virginia and other Southern and Border states. But, as De Tocqueville acknowledges, “So, therefore, in our day in America the aristocratic element, always weak since its birth, is, if not destroyed, at least weakened, so that it is difficult to assign it any influence whatsoever in the course of affairs.”
Finally, the North American colonies had an abundance of something that England lacked by comparison, land. As long as people could move freely across the next ridge of mountains, neither entail nor primogeniture was a barrier to land acquisition and to wealth and status. In short, while De Tocqueville’s thesis about the intimate connection and critical causal relationship between the abolition of such land law doctrines and the development of American democratic character is interesting, there may be less to it than he claims. It might be more accurate to state that the republican nature of American post-Revolutionary War politics and the resulting constitutional realignment made it easier for state legislatures to sweep away anachronistic legal doctrines.
With those disclaimers, many of his observations and conclusions are worth contemplating, both for their general validity and their continued specific relevance to current American social conditions and political structure. “In order to know the legislation and mores a people, one must therefore begin by studying its social state.” So much has been a common staple of anthropology and political philosophy for millennia. Plato’s exploration of the relationship between the nature or soul of the individual and that of the community comes to mind. Aristotle’s argument in favor of the social conditions provided within the Greek polis as best conducing to human flourishing is another example. Baron de Montesquieu added climate and ecology to the factors determining the character of a people and their customs and laws, while his premise of the importance of a people’s social condition to their political system matched that of his countryman.
Ordinary law, including legislation, is most effective when it arises organically from the habits of the people and responds to the community’s felt needs of the times. Law imposed from the top and used instrumentally to achieve a “good” community envisioned by a self-proclaimed enlightened elite and their clerisy is less likely to account for the full range and nuance of the community’s social condition. At the level of a political constitution, the study of a people’s social condition must take into account historical influences and cultural predispositions beyond what might be needed for ordinary civil or criminal law.
De Tocqueville generally views the American emphasis on equality as a commendable trait. Equality is at the heart of an eminently democratic American political structure, as he describes it. There is relative economic equality, not due to a lack of wealthy individuals, reticence about the love of money, or commitment to the permanent equality of property. Rather, there is economic mobility. “In America most of the rich have begun by being poor,” and “fortune turns there with incredible rapidity and experience teaches that it is rare to see two generations collect its favors.”
This is an important factor for republican government. A broad middle class, constituted of farmers, merchants, artisans, and mechanics, was the focus of republican theory from ancient Greece to the American founding. Through its stabilizing influence on the inherent contentiousness of factional political competition, a broad property-owning middle class as an engine for general prosperity and maintenance of so-called bourgeois values and morals is a critical factor for success and longevity of a republic. The current unease about wealth inequality reflects in part a concern about its effect on the essence of our political system, self-government. However, wealth inequality is natural in an advanced technological society based on knowledge. We are not a nomadic hunter-gatherer society. It is not wealth inequality as such that is the problem, it is whether or not there is sufficient economic mobility to avoid multi-generational economic and, ultimately, political stratification.
This cultural devotion to the principle of equality is generally beneficial. It provides the incentive to be economically productive and successful. In education, few are illiterate. “Men show themselves to be more equal in their fortunes and their intelligence … than in any country in the world and than they have been in any century of which history keeps a memory.” On the political side, equality promotes democratic sentiment and political fluidity. “This passion tends to elevate the small to the rank of the great ….”
De Tocqueville acknowledges that there is also a dark side to equality and the democratic principle. He appears to have taken to heart Plato’s lessons in The Republic about the dangers of the democratic man. “[O]ne also encounters a depraved taste for equality in the human heart that brings the weak to want to draw the strong to their level and that reduces men to preferring equality in servitude to inequality in freedom.” This tendency, rooted in envy, is certainly not unknown today.
As to the political danger, “when citizens are all nearly equal, it becomes difficult for them to defend their independence against the aggressions of power…. People can therefore draw two great political consequences from the same social state [maintaining popular sovereignty or succumbing to absolute power of one ruler];…” He concludes, “The first to be submitted to the formidable alternative that I have just described, the Anglo-Americans have been happy enough to escape absolute power.” But the danger is always present, and, if Plato is to be believed, the same social and political characteristics that lead to increased equality and democracy have inherent flaws which ultimately lead to tyrannical government.
De Tocqueville avers that the cause for Americans’ success up to that point was their circumstances (presumably overall prosperity and wide-spread property ownership), origin (presumably deeply ingrained cultural influences), enlightenment (comparatively wide-spread literacy), “and above all mores ….” If De Tocqueville was correct in at least the core of his analysis of the social condition of the dominant Anglo-American population of the United States in the mid-19th century, one must now confront two difficult questions. To what extent do the social and economic conditions he saw as critical pre-requisites for self government and popular sovereignty within a republican system still exist? If they have become eroded and resulted in (or are the result of) more systemic economic stratification, less connection to cultural influences that previously defined American republicanism, and collapse of traditional morals, can these deficiencies be mitigated and the alternative tendency to tyranny be avoided?
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.
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Essay 3: On The Point of Departure and Its Importance for the Future of the Anglo- Americans – Volume 1, Part 1, Chapter 2 of Democracy in America by Alexis de Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 3: On The Point of Departure and Its Importance for the Future of the Anglo-Americans – Volume 1, Part 1, Chapter 2 of Democracy in America - Guest Essayist: Tony Williams, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 27 (start at chapter 2 heading) – 45 (stop at chapter 3 heading) – of this edition of Democracy in America.
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Alexis De Tocqueville was a French traveler who produced one of the most discerning observations about American democracy ever written. His discussion of the Puritan origins of American democracy is ample proof of his keen understanding. In De Tocqueville’s view, the Puritans made profound contributions to civil and religious liberty in what he terms, “the first age of the American republics.”
De Tocqueville acknowledges that the English tradition of rights in the Magna Carta was important to the colonists’ attachment to rights, freedoms, and the rule of law that were a ““fertile seed of free institutions.” But, whatever their country of origin, they experienced common hardships settling North America that promoted equality instead of European feudal aristocracy. While De Tocqueville briefly discusses the South and argues that slavery bred a character of haughtiness and extremes of luxury and poverty:
Slavery as we shall explain later, dishonors work; it introduces idleness into society, and with it, ignorance and haughtiness, poverty and luxury. It enervates the forces of the intellect and puts human activity to sleep. The influence of slavery, combined with the English character, explains the mores and social state of the South.
He focuses on the Puritan democracy that shaped the American character and self rule.
De Tocqueville sees several defining characteristics of Puritan democracy that supported religious and civil liberty. The Pilgrims, he notes, sought to escape persecution and enjoy religious freedom to worship God as they pleased. Importantly, they settled as middle-class families who were the backbone of a society that valued family, order, and morality.
In addition, one of the first things the Pilgrims did in the New World was to agree to a political covenant establishing the rule of law. The Mayflower Compact created a civil body politic to create “just and equal laws” in support of the common good. The towns of New England formed democracies in which the people were sovereign and “name their magistrates…[and] give themselves laws.”
In their democratic town meetings, the sovereign people voted and participated in public affairs, enjoyed individual freedom, and consented to taxes. They served in local public offices that served the needs of the community. The citizens formed strong attachments to their community and were habituated in their rights, duties, and morals.
One of the main pillars of strong, democratic New England towns was the great emphasis upon education. Townspeople paid taxes to support public schools. De Tocqueville correctly observes that the Puritans were a people of the Book who valued education and encouraged literacy to read Scripture. “It is religion that leads to enlightenment,” he wrote.
De Tocqueville argues that New Englanders clearly demonstrated the close ties of “the spirit of religion and the spirit of freedom” that “lend each other a mutual support.” Importantly, he states that Puritanism provided a natural law framework for liberty under law rather than licentiousness.
While he does not directly address the rich tradition of Protestant resistance theory that was similar to and predating the Enlightenment ideas of John Locke, De Tocqueville believes that Puritan covenant theology supported an understanding of civil liberty that the Founders would have understood. The Puritans believed that the Creator was the source of natural rights. A just government supported a rule of law and a moral society that protected the rights granted by the divine.
De Tocqueville concludes the chapter with an exploration of national character. He states that the English tradition of liberty obviously influenced colonial political ideas and practice, but he offers a rather bold assertion that in understanding the American founding, “one ought therefore to distinguish carefully what is of Puritan origin or of English origin.” The tenor of the chapter is that one should not underestimate just how important the Puritans were to shaping American democracy.
Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.
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Essay 2: External Configuration Of Northern America – Volume 1, Part 1, Chapter 1 of Democracy in America by Alexis de Tocqueville
90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog, Daniel Cotter Essay 2: External Configuration Of Northern America – Volume 1, Part 1, Chapter 1 of Democracy in America by Alexis de Tocqueville – Guest Essayist: Daniel Cotter, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, Daniel CotterEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Today’s essay references pages 3 – 27 of this edition of Democracy in America, and stops at the Chapter 2 heading.
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In 1831, Alexis De Tocqueville came to America, sent by France to investigate the United States of America’s prison system. De Tocqueville does that and much more in his incredible, sprawling book that provides his impressions of democracy in North America.
De Tocqueville addresses in the first volume and part and chapter the majestic, sprawling geography of the United States. He refers to the “external configuration” of North America. De Tocqueville refers to the “methodical order” that separates land and water, with two vast regions divided. He notes the two great mountain ranges that separate the regions, one being the Alleghenies in the east, and the other the Rocky Mountains in the west.
In between the two mountain ranges is the “Father of Waters, or the Mississippi.” The valley watered by the Mississippi River “dispenses good and evil at will, and in that it is like the god”. De Tocqueville notes that the waters are responsible for the country’s sterility and abundance. He was very impressed with the Mississippi Valley, making the following glowing attribution:
“The Mississippi Valley is, all in all, the most magnificent dwelling that God has ever prepared for the habitation of man, and nonetheless one can say that it still forms only a vast wilderness.”
De Tocqueville would be pleased, one would think, if he could jump ahead almost 100 years to the present and see that the wilderness is no more.
Turning to the territory that is east of the Alleghenies and west of the Atlantic Ocean, De Tocqueville characterizes that part as “a long band of rocks and sand that the sea, in retreating, seems to have forgotten.” The small territory, 100 miles wide and 900 miles long, did not lend itself to ideal or easy farming. This land De Tocqueville describes was “on that inhospitable coast” where “were born and grew the English colonies that were day to become the United States of America”. When one reads and ponders that statement, one realizes how incredible it is that those colonies became the base for this great nation of ours, which spans beyond the Rockies to the west coast and beyond.
In this first part, De Tocqueville speaks much of the Native Americans and contemplates the first European settlers’ arriving to the new place. He writes of the time before the Europeans came to our shores and the inhabitants:
He speaks of the Indians as “equal and free.” He contemplates the “landing on the shores of North America” by Europeans having little impression on the natives, as “their presence gave rise neither to envy or fear.”
“Mild and hospitable in peace, pitiless in war, even beyond the known boundaries of human ferocity, the Indian would expose himself to die of hunger in order to assist the stranger who knocked at the door of his hut in the night ….. The most famous ancient republics had never admired a firmer courage, prouder souls, a more intractable love of independence than was hiding in the wild woods of the New World.”
“The Indian knew how to live without needs, to suffer without complaining, to die singing. ….they adored God, the creator of the universe. Their notions on great intellectual truths were generally simple and philosophical.”
De Tocqueville in this chapter identifies the resources and the bountifulness of the United States and provides reasons why the nation he wrote so much about was in the position it was, even before the Industrial Revolution that was soon to come.
In closing chapter 1, De Tocqueville sets up the overall premise of his book, the democracy he experienced.
He wrote, “It was there that civilized men were to try to build a society on new foundations, and applying for the first time theories until then unknown or reputed inapplicable, they were going to give the world a spectacle for which the history of the past had not prepared it.”
Much of what De Tocqueville wrote has weathered two hundred years and gone through massive changes, yet his views on the exterior lands is amazing and somewhat forecasting, as the map and America he explored in 1831 was not the sea to shining sea nation we live in today.
Daniel A. Cotter is Attorney and Counselor at Dickinson Wright PLLC. Dan focuses his practices in a variety of areas of corporate law and litigation, including insurance law, complex business disputes and counseling, employment law, corporate transactions, corporate governance and compliance, and cybersecurity and privacy law. Dan was an adjunct professor at The John Marshall Law School, and has taught Insurance Law, Accounting for Lawyers and SCOTUS Judicial Biography. Dan graduated summa cum laude from The John Marshall Law School and received his B.A. in Accounting from Monmouth College, magna cum laude. Dan is a frequent writer and presenter on various topics, including the nation’s history and the Supreme Court, and in 2019, his book, “The Chief Justices,” was published.”
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Introduction to Democracy in America by Alexis de Tocqueville: Why Every American Should Read a Book by a Frenchman
Pete Peterson, 90 in 90 2024, 6. Guest Constitutional Scholar Essayists, Blog Essay 1: Introduction to Democracy in America by Alexis de Tocqueville: Why Every American Should Read a Book by a Frenchman – Guest Essayist: Pete Peterson, Pete Peterson, 2024 - De Tocqueville Study, 14. De Tocqueville Study, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
The essays in our study reference the following edition of Democracy In America: University of Chicago Press – 1st edition translated by Harvey Mansfield and Delba Winthrop. Leave a comment in the blog below and automatically be entered in our weekly drawing for a free copy of the book!
In the introduction to their translation of Alexis De Tocqueville’s Democracy in America, the renowned Harvard historian, Harvey Mansfield, and his late wife, Delba Winthrop, describe the volume as “at once the best book ever written on democracy and the best book ever written on America.” Though written almost two centuries ago, the book’s insights on American culture and exceptionalism could not be more timely. Though coming in at 700+ pages in the Mansfield/Winthrop edited edition, it’s well worth an investment of time and study by every American.
Alexis De Tocqueville was a French aristocrat and government official who landed in the United States in 1831 with his friend, Gustave de Beaumont, ostensibly to study America’s prison system, but his plans soon change as he encounters a culture so different than his own. In the first paragraph of the book, De Tocqueville lays the foundation for his overarching argument about the country’s exceptional nature by declaring that what struck him most about America in those first few days of the visit was the “equality of conditions”. He goes on to argue that “this enormous influence this primary fact exerts on the course of society; it gives a certain direction to public spirit, a certain turn to the laws…and particular habits to the governed.” By “equality of conditions”, De Tocqueville did not mean to say that everyone lived in equal circumstances, but something closer to “equality of opportunity.”
From this firm foundation, De Tocqueville perceives the major cultural factor (what he calls “mores”) that appears to be necessary to support a country where equal opportunity reigned as the central economic dynamic. He quickly discovers that Americans hold to a doctrine he calls “self-interest rightly understood” – a worldview that dictates a certain degree of reliance on neighbors and community in order to accomplish tasks ranging from building churches to roadways. Remember, at this stage in America’s history, the federal government had little power to determine local affairs. As De Tocqueville writes, “they show with complacency how an enlightened regard for themselves constantly prompts them to assist each other, and inclines them willingly to sacrifice a portion of their time and property,” for the common good.
Comparing with his native Europe, De Tocqueville is also shocked to see religion and government mix in a way that’s actually beneficial rather than a source of bloody conflict. Unlike Europe, America did not have a national religion, but ironically, this contributed to a flourishing of faith in the country. From developing Americans’ political skills by serving in local church administrative councils, to working with faith-based nonprofits, De Tocqueville concludes, “Religion, which, among Americans, never mixes directly in the government of society should therefore be considered as the first of their political institutions; for if it does not give them the taste for freedom, it singularly facilitates their use of it.”
This willingness of Americans to collaborate through nonprofit and ad hoc civic organizations is what De Tocqueville describes as “associativeness”, and it’s a major distinction between this burgeoning republic and Europe. From temperance associations to foreign missionary support organizations, De Tocqueville sees Americans put their faith into action even as they respond to local needs that would have been the purview of government in Europe. He observes, “Everywhere that, at the head of a new undertaking, you see the government in France and a great lord in England, count on it that you will perceive an association in the United States.”
As we conclude our whirlwind review of Democracy in America, it’s worth noting that De Tocqueville’s last chapters in the book can be seen as prophetic in describing the future of American (and other democracies’) society. It’s not an optimistic perspective, and one grounded in the Frenchman’s belief that with the increasing wealth he foresees coming to this country, Americans will gradually withdraw from their associations, their faith, and the community-spirit. De Tocqueville looks to the future: “There is, in fact, a very perilous passage in the life of democratic peoples. When the taste for material enjoyments develops in one of these peoples more rapidly than enlightenment and the habits of freedom.”
De Tocqueville fears that as Americans earn the material benefits of freedom, they will look to government not to protect our liberties, but to protect our “stuff”. He describes this dynamic: “each of them desires that it [central government] aid him as an exception in the special affair that reoccupies him, and he seeks to attract the action of the government to his side, all the while wanting to shrink it for everyone else.”
It is here where De Tocqueville wonders whether the “self-interest rightly understood”, which drew Americans into civil society and community would become “self-interest wrongly understood”- a selfishness and withdrawal from the public square. For future leaders, De Tocqueville sees that “individual independence and local liberties will always be the product of art.” Are we seeing these trendlines today? I think these concerns, and the importance of citizen engagement are vital to consider during this election year, and beyond.
Pete Peterson is the Braun Family Dean’s Chair of Pepperdine University’s School of Public Policy. Prior to that he was the executive director of the School’s Davenport Institute, which trains local government officials to improve their public meeting processes. Pete speaks and writes widely on civic participation, viewpoint diversity in higher education, and the increasing role of technology in local government.
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Mr. James Ingram
BlogMr. James Ingram was Constituting America Founder, actress Janine Turner’s, beloved 5th grade teacher, who instilled in Janine a love of our founding fathers, through the 5th grade’s production of 1776.
Mr. Ingram was honored as Constituting America’s Constitutional Champion in 2011 and was a beloved and active member of our Education Advisory board.
Mr. Ingram’s full obituary is below.
NORTH RICHLAND HILLS – James Ingram, 72, passed away on Saturday, March 2, 2024.
Graveside Service: 10 a.m. Saturday, March 9, 2024, at Mount Olivet Cemetery with Jinx Ingram Thompson to officiate. Elizabeth Hatley, a dear friend, will deliver the eulogy. Visitation: 5 to 7 p.m. Friday, March 8, 2024, at Mount Olivet Chapel in the Sandburg Suite.
James was born in Fort Worth. He was the son of, James and Juanita Ingram. James accepted Christ as his personal Savior at a young age. He prayed daily and maintained a positive spirit. His cousins, Jinx and Betty, were like sisters to him. They had many great times including U.S.A. and world travel experiences.
James graduated from Texas Wesleyan University with a Bachelor of Science degree. He obtained a Master’s in Education degree from Texas Christian University.
His lifelong, devoted career encompassed 34 years as an elementary fifth grade teacher at Eagle Mountain Elementary. He enjoyed the challenge of Shakespeare’s Romeo and Juliet in a modified version on the stage with his fifth grade Language Arts classes. He also produced musicals with his students early in his career. The Eagle Mountain-Saginaw I.S.D. school board named the school stage in his honor when he retired.
Other educator honors included: 1995-1996 District-wide Elementary Teacher of the Year, Peer Professional, PTA Life Membership Recipient, PTA Extended Service Award, and Saginaw Chamber of Commerce Educator of the Year.
James appeared on television’s Disney’s American Teacher Awards. He was selected by actress, Janine Turner, a wonderful former student, as her favorite teacher. Furthermore, Ms. Turner recognized him as “The Constitutional Champion Teacher at the “Constituting America” gala.
His involvement with Miss Texas Pageant included Board of Trustees member and Awards Ball Set-Up committee chairman. James was inducted into the Miss Texas Hall of Honor for his pageant work.
James was a season ticket holder with dear friends for the Fort Worth Symphony Pops, Texas Ballet Theater, and Theatre Arlington. B. J. Cleveland, former artistic director at Theatre Arlington, was a talented former student.
Trips to the Texas Rangers baseball games were a highlight. The “good times” were highlighted with his Bunco groups of special friends. The Olive Garden, Chili’s, Babe’s Restaurant, Saltgrass, and Abuelo’s were his favorite restaurants. James enjoyed reading best sellers and viewing the Oscar-nominated movies. Morning walks with his mall buddies at the NE Mall and Grapevine Mills Mall, started each day with special conversations and many smiles. Pilgrimages to Scarborough Faire in Renaissance costumes with his Bros.-in-Hose provided majestic experiences for James and friends.
Surgeries were a challenge later in life. These included open-heart surgery, two hernia surgeries, six leg surgeries, cataracts surgeries, skin cancer surgery and gallbladder surgery. God’s Grace saw James through these times.
Survivors: All from Fort Worth
Cousin, Jinx Ingram Thompson
Cousin, Betty Evans
Second Cousin, Kim, and her 3 children
Second Cousin, Josh and wife, Laurie and their 5 children
Cousin, Tommy Freeman, and his 3 children
To plant Memorial Trees in memory of James Arnold Ingram, please click here to visit our Sympathy Store.
Maureen Quinn
BlogIn loving memory of our dear friend, Anne Maureen Quinn. Maureen entered this life on September 25, 1956 and passed away December 14, 2022. Maureen was a bright light who shone in all of our lives.
We were blessed to have Maureen’s beautiful voice narrate many of our 90 Day Studies. She also submitted our We The Future Contest winners’ films into film festivals, achieving over 118 film festival acceptances for our winners over her time with us. In Maureen’s memory, we have named our We The Future short film category after her.
Maureen was a talented writer, inspirational life coach and sought after voice talent in Hollywood, but most of all, she was a treasured friend to all of us who had the blessing of knowing her and working side by side with her over the years.
Please join us in leaving your remembrances of Maureen here on our page.
Conclusion: Preserving the First Principles of the American Founding
90 in 90 2023, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 90: Conclusion: Preserving the First Principles of the American Founding – Guest Essayist: Chris Burkett, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
Does the United States today resemble the nation envisioned by the American Founders? Have we lived up to the political and constitutional principles they believed are so important for maintaining a free society and remaining a self-governing people? Have we as a people done a good job of preserving those principles by educating and reminding each generation on their importance? Constituting America’s 90-Day Study on “First Principles of the American Founding” should help each of us, as citizens, think about the first two questions in a more enlightened and informed way – and certainly goes far in ensuring that the third question is answered in the affirmative.
In this series of essays, written by exceptionally thoughtful thinkers, teachers and scholars, we can discern how insightful the American Founders were in recognizing and articulating the first principles upon which the nation of America was founded. From ideas identifying the basis of rights in nature rather than tradition, to constitutional principles that established a limited government, to foreign policy principles meant to promote justice with other nations, these essays allow us to glean in a more capacious way the overarching ideas that informed who we were meant to be as a people and a nation.
These essays reveal that Americans, and especially the Founders, had learned extensively from the careful study of history. Born of English tradition, Americans gradually came to develop their own identity – one might even say “mind,” as Thomas Jefferson called it. Separated from Great Britain and largely left alone for decades, American colonists lived in relative freedom and came to establish local governments and social institutions that complemented their understanding of rights and liberties. They frequently heard these ideas of individual liberty and limited government reinforced in their churches, newspapers, shops, and businesses. The essays in the 90-Day Study, as a whole, show the story of how Americans became one people united by common principles.
The American Revolution was, in more than one sense, a test of those principles. Should the Revolution fail, the principles of liberty and self-government might be lost forever. It was also a test in the sense that Americans found themselves in the position of having to accomplish a political separation and wage a war in accordance with the very principles they declared to be self-evidently true. Winning the war and gaining independence seemed to many, including George Washington, nothing short of miraculous. Having accomplished this, Americans next found themselves having to apply the principles of the Declaration of Independence to the creation of a government that would fulfill the demands of justice both at home and toward foreign nations. In other words, Americans had to learn how to act like a nation – and this is when Americans applied and thought even more deeply about the meaning of their founding principles.
Domestically, Americans faced the great difficulty of establishing a republic, based on consent, to replace the traditional form of monarchy that had prevailed throughout most of human history. The challenge facing the Framers of the United States Constitution was how to frame a government that was sufficiently powerful to secure the natural rights of American citizens, but that was also sufficiently checked to prevent it from abusing and violating these rights and liberties. Another great challenge was to find constitutional ways of obligating America’s government to secure American sovereignty and independence, and to respect the independence and sovereignty of other nations. The essays in this 90-Day Study reveal that, to fulfill these ends, knowledge of fundamental principles proved to be the guiding star for the Framers of the Constitution, and the standard by which American citizens could judge the justice or injustice of acts of government even after the Constitution had been ratified.
In the end, these essays bring to the fore the Founders’ view that without civic virtue, no government – not even America’s own Constitutional government – can succeed. Local political participation can never be replaced by national administration without some cost to individual liberty; and despite the best efforts of the Framers of the Constitution, civic awareness and engagement is still necessary to check laws and policies that are contrary to the principled purposes of government. All of this reinforces why the Founders believed that a proper civic education of the American people was so critical – an education that informs them of both their rights and duties. This 90-Day Study, as a whole, aims to fulfill that crucially important purpose of the American Founders.
Christopher C. Burkett is Associate Professor of History and Political Science, and Director of the Ashbrook Scholar Program at Ashland University.
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Upholding the Principle of Free Civil Discourse and Public Debate Without Censorship
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 87: Upholding the Principle of Free Civil Discourse and Public Debate Without Censorship – Guest Essayist: Gary Porter, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary PorterAmerican government, as President George Washington notes, is to be based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force:
[I]f Men are to be precluded from offering their Sentiments on a matter, which may involve the most serious and alarming consequences, that can invite the consideration of Mankind, reason is of no use to us; the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter. – George Washington, Speech to the Officers of the Army at Newburgh, the Newburgh Address, March 15, 1783.
The Articles of Confederation Congress had difficulty with the states meeting their funding requisitions during most of the Revolutionary War period. Ending the siege at Yorktown in General George Washington’s favor only made matters worse. With the British no longer posing a threat, the men of the Continental Army were ordered into bivouac at Newburgh, New York. Soon thereafter, Congress stopped paying them, as a “cost-saving” measure, and also stopped funding the soldiers’ pensions.
The conflict over this came to a head when an anonymous letter was circulated in Congress in which a threat was made: the Army would remove itself to “unsettled” western lands, leaving the states unprotected until such time as pay and funding resumed.
Commander-in-Chief General George Washington traveled personally to Newburgh, and in an emotional scene during which he apologized for having to use spectacles to read his prepared remarks said, “I have grown not only gray, but almost blind in the service of my country,” he convinced the officers and men to renew their trust in Congress. Washington noted that the anonymous letter was appropriate since, “[I]f Men are to be precluded from offering their Sentiments on a matter, … the freedom of Speech may be taken away, and, dumb and silent we may be led like sheep, to the Slaughter.”
“The Founders considered freedom of speech a fundamental natural right.”[i] At the same time, the right was also understood to not be absolute because during the early colonial period, “seditious words” were taken seriously and often prosecuted, as was blasphemy in most states.
When Patrick Henry proclaimed on May 29, 1765, that “Caesar had his Brutus, Charles the First his Cromwell and George the Third … may profit by their example,” he was indeed guilty of treason under English law. To “compass or imagine” the death of the King was one of the several crimes in the Treason Act of 1351, and Henry knew this. To the cries of “Treason” from some of the Burgesses in the room, Henry replied, “If this be treason, make the most of it.”
Christian thinker, G. K. Chesterton, said: “To have a right to do a thing is not at all the same as to be right in doing it.”[ii]
Sir William Blackstone agreed: “Every freeman has an undoubted right to lay what sentiments he pleases before the public…But if he publishes what is improper, mischievous, or illegal, he must take the consequence of his temerity.”[iii] Note that Blackstone refers here to “illegal” speech; the Treason Act would provide but one example.
But other founding era philosophers disagreed. French philosopher Baron de Montesquieu,[iv] in his acclaimed work, The Spirit of the Laws, wrote: “The laws do not take upon them to punish any other than overt acts. . . . Words do not constitute an overt act; they remain only an idea.”
Without freedom of speech during the period 1760-1776, there likely would have been no revolution leading to American independence. Based on the Founder’s experience, the British would have prohibited public speeches arousing the people to claim their freedom and the press would have been severely curtailed.
“Freedom of speech is a principal pillar of a free government; when this support is taken away, the constitution of a free society is dissolved, and tyranny is erected on its ruins. Republics and limited monarchies derive their strength and vigor from a popular examination into the action of the magistrates. An evil magistrate entrusted with power to punish for words, would be armed with a weapon the most destructive and terrible.”[v]
In ratifying the United States Constitution, Virginia, North Carolina and Rhode Island (both of which copied Virginia’s submission verbatim) all proposed a free speech amendment and James Madison included an amendment, which read: “That the people have a right to freedom of speech, and of writing and publishing their sentiments; that the freedom of the press is one of the greatest bulwarks of liberty, and ought not to be violated.”[vi] In successive House and Senate committees this was “wordsmithed” to the wording eventually placed within the Bill of Rights of the United States Constitution.
The Founders great emphasis on freedom of speech makes the Alien and Sedition Acts of 1798 difficult to explain. Perhaps the expression “when the shoe is on the other foot” best captures Congress’s motivation to censor and suppress speech as the infant nation of America attempted to stay neutral in the on-again, off-again war between England and France. Americans were equally split on the question of which country the John Adams administration should support (even as both England AND France were both interdicting American shipping heading for their enemy’s ports). The Sedition Act made it illegal to make false or malicious statements about the Adams administration, specifically mentioning the President while conspicuously not mentioning the Vice-President. Criticism of Thomas Jefferson was therefore fair game, and certain “Adams-friendly” newspapers took great advantage of it.
So convinced they were of the unconstitutionality of the Acts, Thomas Jefferson and James Madison consented to drafting, respectively, the Kentucky and Virginia resolutions. These essays argued that the states have both a right and a moral responsibility to declare unconstitutional acts of the national government to be so and hold them to be null and void within their state.
The U.S. Supreme Court eventually found the Sedition Act to be constitutional in United States v. Thomas Cooper (1800).[vii] Congress had set the Alien and Sedition Acts to expire on March 3, 1801; the reason being was, the following day, a new President and Vice President would be inaugurated. Over a century later, President Woodrow Wilson’s administration would bring back the Alien and Sedition Laws (as the Espionage and Sedition Acts) as the U.S. entered World War I.
The Free Speech landscape had changed drastically by 1925 when the Court “incorporated” the Free Speech Clause into the Due Process Clause of the Fourteenth Amendment in Gitlow v. New York,[viii] creating an explosion of free speech cases based on state government actions, which continued thereafter.
Although the Free Speech Clause was intended to only restrict government actions, in the 1970s, the Supreme Court began deciding that commercial “speech” could also be regulated to some extent.[ix] Since that time, regulations on commercial advertising have become commonplace.
Eventually, the Court decided that certain types of “symbolic speech,” i.e. “speaking” through actions rather than words, should also be protected.[x] Over the years, the following are some examples of types of symbolic speech among those requiring protection:
Without freedom of speech, remaining steadfast to the principle of free civil discourse and public debate without censorship, America would likely be a very different place. “Freedom of Speech is the great Bulwark of Liberty; they prosper and die together.”[xi]
Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.
[i] Robert Natelson, The Original Constitution; What it Actually Said and Meant.”Apis Books Colorado Springs, CO, p. 212.
[ii] https://en.wikipedia.org/wiki/G._K._Chesterton
[iii] William Blackstone, Commentaries on the Laws of England, 1769.
[iv] Montesquieu was the most oft-quoted political philosopher at the Constitutional Convention, after the Bible.
[v] Benjamin Franklin, On Freedom of Speech and the Press, Pennsylvania Gazette (17 November 1737).
[vi] https://en.wikipedia.org/wiki/United_States_Bill_of_Rights
[vii] https://www.archives.gov/education/lessons/sedition-case
[viii] https://www.law.cornell.edu/supremecourt/text/268/652
[ix] https://constitution.findlaw.com/amendment1/freedom-of-speech-for-corporations.html
[x] https://mtsu.edu/first-amendment/article/1022/symbolic-speech
[xi] Trenchard and Gordon, Cato’s Letters, February 4, 1720.
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Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 62: Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers – Guest Essayist: Gary Porter, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary R. PorterArticle V of the United States Constitution describes that the only lawful methods, of amendment, are by its keepers, the American people. While that may have been the Framers’ intent, an unlawful method of amending the Constitution, through judicial activism, for example, usurps the legislative process of the American people when the courts are used as a legislature. Black’s Law Dictionary defines “judicial activism” as a “philosophy of judicial decision-making whereby judges allow their personal views about public policy, among other factors, to guide their decisions.”[1]
When the Supreme Court renders an opinion about a constitutional provision, that opinion–it is called an “opinion” and not a “law”–has traditionally assumed the status of the Constitution itself; since the Constitution is the Supreme Law of the Land (see Article VI), the American people and the federal government have given federal court opinions the same status: the law of the land. Nothing in the U.S. Constitution requires this, but that is the way America has operated as a people since the Constitution was ratified. Many distinguished men over the years have warned against this approach:
Thomas Jefferson: “[T]o consider the judges the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed and one which would place us under the despotism of an oligarchy.”
Andrew Jackson: “The opinion of the judges has no more authority over Congress than the opinion of Congress has over the judges.”
Abraham Lincoln: “[I]f the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.”
Is the U.S. Constitution “Alive?”
President Woodrow Wilson is credited with originating the concept of a “Living Constitution,” the idea that the Constitution must constantly be updated to reflect changes in the culture and mores of an evolving society. Who best to guide the “evolution” of the Constitution but the legal “scientists” of the federal courts? Why go through the arduous process of amending the Constitution through Article V when the Supreme Court is willing to issue an opinion which will have the same effect as a desired amendment? The Supreme Court has often been viewed as the “legislature of last resort.” Policies which have failed to gain majority acceptance in the Legislative Branch, whether state or federal, are instead “enacted into law” by the Judiciary.
The Anti-federalist called “Brutus”[2] warned: the “power in the judicial, will enable them to mould the government, into almost any shape they please.”
James Madison mentioned in Federalist 51 that the Constitution requires the government “to control itself.”[3]
Congress last proposed an amendment to the Constitution fifty-two years ago, in 1971, the Twenty-sixth Amendment. Scores of proposed amendments are introduced in Congress each session; a handful may make it out of committee; none have achieved a two-thirds vote on the floor in either chamber, or both chambers, since 1971.
Article V of the United States Constitution, on amending the Constitution, states that when two-thirds (34) of the state legislatures apply to Congress for an amendment convention, Congress shall convene one. Nothing in the Constitution describes how such a convention must operate, or the threshold within the convention for approving amendment proposals before they are transmitted for ratification, but there is ample historical evidence showing how such conventions of the states operated during the founding period and model rules for such a convention have already been composed and tested.[4]
Consider next the alternatives to amending the Constitution through an Article V convention:
The “Article V Question” is indeed controversial. Some opponents insist it will do more damage than good. Still, with arguments on both sides, correctly amending the Constitution remains in maintaining the principle that “the United States Constitution prescribes within the document the only lawful methods of amendment, by its keepers, the American people.”
Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.
[1] As quoted in “Takings Clause Jurisprudence: Muddled, Perhaps; Judicial Activism, No” DF O’Scannlain, Geo. JL & Pub. Pol’y, 2002.
[2] The identity of Brutus is unknown, but scholars have suggested he was either Melancton Smith of New York or John Williams of Massachusetts. See: https://en.wikipedia.org/wiki/Brutus_(Antifederalist).
[3] James Madison, Federalist No. 51, 1788, read at: https://avalon.law.yale.edu/18th_century/fed51.asp.
[4] https://conventionofstates.com/videos/official-convention-of-states-historic-simulation-live.
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Principle of a United States Constitution Prescribing Within Itself the Only Lawful Methods of Amendments, by Its Keepers, the American People
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 61: Principle of a United States Constitution Prescribing Within Itself the Only Lawful Methods of Amendments, by Its Keepers, the American People – Guest Essayist: Gary Porter, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary R. PorterPrior to achieving statehood in March 1791, the Republic of Vermont placed a provision in their 1786 State Constitution. Every seven years, the people would elect a 13-person Council of Censors who would examine whether: “the Constitution has been preserved inviolate in every part, during the last septenary (including the year of their service;) and whether the legislative and executive branches of government have performed their duty, as guardians of the people, or assumed to themselves, or exercised other or greater powers than they are entitled to by the Constitution: they are also to inquire, whether the public taxes have been justly laid and collected in all parts of this Commonwealth–in what manner the public monies have been disposed of–and whether the laws have been duly executed.”[i] This Council would: “recommend to the Legislature the repealing such laws as appear to them to have been enacted contrary to the principles of the Constitution; these powers they shall continue to have, for, and during the space of one year from the day of their election, and no longer. The said Council of Censors shall also have power to call a Convention, to meet within two years after their sitting, if there appears to them an absolute necessity of amending any article of this Constitution which may be defective–explaining such as may be thought not clearly expressed–and of adding such as are necessary for the preservation of the rights and happiness of the people; but the articles to be amended, and the amendments proposed and such articles as are proposed to be added or abolished, shall be promulgated at least six months before the day appointed for the election of such Convention, for the previous consideration of the people, that they may have an opportunity of instructing their delegates on the subject.” (Emphasis added)
Laying on land claimed by both New Hampshire, New York and, at times, Canada, Vermont finally became an independent republic on January 15, 1777. It called itself the State of Vermont but failed to receive recognition by any country until admitted to the union on March 4, 1791.[ii] Because of its independency, Vermont was not invited to the Constitutional Convention in 1787. If it had been invited, would these ideas of constitutional review and revision have made it into the United States Constitution? If the U.S. Constitution had contained such a provision, what sort of amendments might have been ratified over these 234 years (as of 2023). And over these years, would the Constitutional “Council of Censors” find, repeatedly, that the Constitution had not “been preserved inviolate in every part”?
Amendment Under the Articles of Confederation
One of the chief defects of the Articles of Confederation, found in Article XIII, reads in part: “nor shall any alteration at any time hereafter be made in any of [these Articles]; unless such alteration be agreed to in a Congress of the United States, and be afterwards confirmed by the legislatures of every State.”[iii] (Emphasis added)
This requirement for unanimity among the states meant that the Articles would never be amended or otherwise improved. In his Vices of the Political System of the United States, James Madison’s “homework assignment” to himself, he fails to mention this flaw among the twelve “vices” he identifies; it could be that much of the “blame” for America’s moving to a new Constitution is due to this one defect. At the Constitutional Convention, Charles Pinckney said “it is to this unanimous consent [provision of the Articles], the depressed situation of the Union is undoubtedly owing. Had the measures recommended by Congress and assented to, some of them by eleven and others by twelve of the States, been carried into execution, how different would have been the complexion of Public Affairs? To this weak, this absurd part of the Government, may all our distresses be fairly attributed.”[iv]
In 1781, a proposal was made to amend the Articles of Confederation to give Congress the power to set an impost on goods. Rhode Island refused to approve the measure. As described in the notes of delegate James Madison, “[t]he small district of Rhode Island put a negative upon the collective wisdom of the continent.” Just as Rhode Island’s veto prevented the adoption of an impost in 1781, New York would be the sole state to obstruct a second impost attempt two years later.
Early in 1785, a Congressional committee recommended amending the Articles of Confederation to give Congress power over commerce. Congress sent the proposed amendment to the state legislatures; only a few states responded.
Later that year, in a letter to James Warren, George Washington, wrote: “In a word, the confederation appears to me to be little more than a shadow without the substance;..Indeed it is one of the most extraordinary things …that we should confederate for National purposes, and yet be afraid to give the rulers of that nation… sufficient powers to order and direct the affairs of the same.”[v]
In 1786, Charles Pinckney proposed a revision of the Articles. A committee debated the proposal and recommended granting Congress power over both foreign and domestic commerce, and empowering Congress to collect money owed by the states. By now, convinced that at least one state would disagree, Congress never sent the measure to the states. Given this history, it appeared to the Constitutional Convention delegates that something less than unanimity was required to amend the new Constitution they had drafted.
Amendment at the Constitutional Convention
Item seventeen of the Virginia Plan, introduced in the “Grand Convention” on May 29, 1787, stated: “Resolved. that provision ought to be made for the amendment of the articles of Union, whensoever it shall seem necessary;” There were many provisions of the Virginia Plan to discuss and debate. The delegates did not discuss a process of amendment until a month before the end of the convention.
The U.S. Constitution, Analysis and Interpretation website,[vi] provides this account of the debates over what became Article V of the new United States Constitution:
Alexander Hamilton … suggested that Congress, acting on its own initiative, should have the power to call a convention to propose amendments.[vii] In his view, Congress would perceive the need for amendments before the states.15 Roger Sherman took Hamilton’s proposal a step further, moving that Congress itself be authorized to propose amendments that would become part of the Constitution upon ratification by all of the states.16 James Wilson moved to modify Sherman’s proposal to require three-fourths of the states for ratification of an amendment.17 James Madison offered substitute language that permitted two-thirds of both houses of Congress to propose amendments, and required Congress to propose an amendment after two-thirds of the states had suggested one.18 This language passed unanimously.19
But on September 15, 1787, two days before the convention adjourned for the last time, Article V of the draft Constitution was again discussed. To that point, the approved wording gave all power to Congress to officially propose amendments, although the states could suggest them. Virginia’s George Mason rose and cautioned that: “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive (as Madison wrote in his notes), as he verily believed would be the case.” Gouverneur Morris and Elbridge Gerry then moved to require a convention on application of two-thirds of the states and the motion passed “nem: con:” (unanimously). And this provided the alternate method of proposing constitutional amendments: a convention of the states. But notice the rationale for this alternate method of amendment: should Congress become oppressive.
The process of amendment placed in Article V was further debated in the state ratifying conventions, the records of Massachusetts,[viii] North Carolina[ix] and Virginia[x] particularly recording the concerns of delegates. Some convention delegates, like Virginia’s Edmund Randolph, who refused to sign the Constitution, even called for an amending convention[xi] to be immediately convened to fix the “deficiencies” in the Constitution before they went into operation, which would make them harder to correct. Madison thought the idea dangerous. Randolph’s suggestion never gained momentum and the Constitution was ratified by Virginia on June 26, 1788, four days after New Hampshire’s ratification “sealed the deal” because it was the ninth state to ratify, the number of states required by the new Constitution. Less than a year later, the new national government went into operation.
Amending the Constitution – Correctly
Article V of the United States Constitution contains two methods of proposing amendments and two methods of ratifying amendments. Congress, with a two-thirds vote of both chambers, can propose an amendment for ratification by the states and the states themselves, in a convention called for that purpose, can propose amendments for ratification. Over America’s history, all 27 current amendments have been proposed by Congress, none by a convention of the states.
Ratification of a proposed amendment can also take two forms: ratification by three-fourths of the several state legislatures (38) or ratification by three-fourths of state conventions held for that purpose, Congress may “propose” either method. Over America’s history, the later method of ratification has been used only once, to ratify the Twenty-first Amendment.
As many as five thousand amendments have been proposed in Congress since the Constitution went into effect in 1789 and only twenty-seven survived the high hurdle of committee discussions/votes followed by super majority floor votes in both chambers.
Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.
[i] https://press-pubs.uchicago.edu/founders/documents/a5s1.html.
[ii] It was Vermont’s admission to the Union which required ratification of the Bill of Rights by ten states versus the nine required to ratify the Constitution itself.
[iii] https://www.archives.gov/milestone-documents/articles-of-confederation.
[iv] Charles Pinckney, Observations on the Plan of Government Submitted to the Federal Convention of May 28, 1787, reprinted in 3 Farrand’s Records, supra note 1, at 120–21.
[v] https://press-pubs.uchicago.edu/founders/documents/v1ch5s9.html.
[vi] https://constitution.congress.gov/browse/essay/artV-2/ALDE_00013047/#ALDF_00017913
[vii] https://constitution.congress.gov/browse/essay/artV-2/ALDE_00013047/#ALDF_00017913
[viii] https://press-pubs.uchicago.edu/founders/documents/a5s7.html.
[ix] https://press-pubs.uchicago.edu/founders/documents/a5s10.html.
[x] https://press-pubs.uchicago.edu/founders/documents/a5s9.html.
[xi] https://press-pubs.uchicago.edu/founders/documents/a7s4.html.
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Principle of Secure Borders
Kevin Portteus, 90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog Essay 71: Principle of Secure Borders – Guest Essayist: Kevin Portteus, Kevin Portteus, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
Though the concept of national borders is rejected by many,[1] with some even denouncing the very idea of borders between nations as racist,[2] at both principled and practical levels, however, secure borders are not only defensible, but essential.
More than any other single concept, the foundational principle of the American regime is the principle of natural equality. “That all men are created equal” is the first of the “self-evident truths” proclaimed in the Declaration of Independence. In his 1791 Lectures on Law, James Wilson explains that this equality does not extend to “to their virtues, their talents, their dispositions, or their acquirements,” but only that “the natural rights and duties of man belong equally to all.”[3] This equality of rights originates in “the Laws of Nature and of Nature’s God”: it is inherent in our humanity, and not dependent on any regime or government.
The political corollary of the equality principle is the principle of government by consent. Abraham Lincoln describes this as “the sheet anchor of American republicanism” and “our ancient faith.”[4] Precisely because all men are created equal, no man has the right to govern any other man, without that other’s consent. No one is inherently superior to anyone else in his right to govern. All legitimate political relationships between equal human beings must be on the basis of consent.
This principle of consent is directly applicable to immigration and border security. If borders are insecure, then people may enter into a country, without the consent of those who already comprise that country. It would be as if a homeowner had no right to prevent random people from simply walking in the front door, plopping themselves down on the couch, and claiming to live there now. A property owner has a right to control ingress into his property. A nation is the collective property of its citizens, who have consented to live with each other. If a random person could force himself on the people of a country, without their consent, then that is not a relationship of equals. It is instead tyranny.
Not only is a nation without secure borders subject to the arbitrary whim of whomever may choose to impose himself upon it, that nation also has no control over what comes across its borders. There is overwhelming evidence that huge quantities of illegal narcotics, such as fentanyl, have been pouring across America’s porous southern border.[5] Other problems are known to occur such as increased rates of diseases like polio and tuberculosis.[6] Finally, an insecure border is an invitation to engage in international human trafficking, and the practice is epidemic at the US-Mexico border.[7] In short, a nation, which does not have secure borders, is not really a sovereign nation at all.
The power to protect the integrity of America’s borders is embedded in the United States Constitution in at least two places. First, Article I, Section 8 states that Congress “shall have power…to define and punish…Offences against the Law of Nations.” Borders, and migration of non-citizens across those borders, were understood by America’s Founders to be a law of nations issue and are thus covered by this clause. Second, Article I, Section 9, the infamous “Importation Clause,” creates a “negative pregnant,” implying that in the absence of one very specific set of conditions, Congress may regulate “migration” into the United States, not just the “importation” of enslaved persons[8] as was being addressed by the Founders at the time of writing the Constitution. They wanted to continually reduce and end the scourge of slavery in the United States while preserving the Union and without fomenting war between the states over controversial issues.
With this understanding by the Founders, how would it be possible to maintain what makes America its own nation able to self-govern apart from any dictatorships that could take hold? As President, John Adams wrote “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.”[9] meaning that the nation of Americans possesses a specifically chosen cultural infrastructure, and the American people have historically adopted certain moral values, that make its system of constitutional self-government possible. This system, in turn, makes it possible for Americans to enjoy their natural rights. Other peoples, and other cultures, antithetical to that system of government, are thus a mortal threat to America’s political system and way of life, and Jefferson cautioned against a mass influx of peoples with opposing cultures and values, to those of America’s, in Notes on the State of Virginia.[10]
The ultimate tendency of the obliteration of borders is the obliteration of the very idea of sovereign nations. In Federalist 10, James Madison argues for the viability and desirability of a large republic, but even this has its limits.[11] The limits of communication and transportation cannot be completely overcome, and there’s more to a self-governing political society than that. The competing interests of society must have something to unite them; Madison also notes in Federalist 10 that “justice ought to hold the balance between them.” In order to constitute a true political society, a regime, they must share something fundamental, which Aristotle at the outset of The Politics calls the “good.”[12]
The natural and inherent differences in people’s thinking about ideas such as what is good and just means that the peoples of the world will never agree on them perfectly, and they can thus never come together into one regime on principles of justice. The result will either be tyranny or anarchy, as philosophers as diverse as Leo Strauss and John Rawls have noted.[13] The destruction of sovereign nations does not signify the dawn of universal justice; it rather heralds the establishment of universal tyranny.
Secure borders, then, are a necessary precondition of liberty and self-government. It allows us to distinguish between those who are members of our political community, and those who are not. It allows people who share conceptions of justice and the good to congregate into one political community and govern themselves according to those conceptions. Secure borders allow Americans to preserve the cultural infrastructure that makes the United States’ version of free self-government possible. The concept of secure borders is embedded in both American principles and constitutionalism. The destruction of secure borders would be a catastrophe for the American republic.
Kevin Portteus is Professor of Politics, Director of American Studies, and the Lawrence Fertig Chair in Politics at Hillsdale College.
[1] https://rooseveltinstitute.org/wp-content/uploads/2022/08/RI_TheStatueofLibertyPlan_Report_202208.pdf (accessed August 4, 2023); https://nymag.com/intelligencer/2019/04/this-is-the-immigration-policy-liberals-want.html (accessed August 4, 2023); Alex Nowrasteh, Open Immigration: Yea, in Alex Nowrasteh and Mark Kirkorian, Open Immigration: Yea & Nay (New York: Encounter Books, 2014).
[2] https://www.npr.org/2021/09/30/1041623709/the-racist-legacy-of-early-immigration-law-is-still-alive-today (accessed August 4, 2023); https://thenevadaindependent.com/article/nevada-judge-says-immigration-law-making-reentry-a-felony-is-unconstitutional-has-racist-origins (accessed August 4, 2023).
[3] https://press-pubs.uchicago.edu/founders/documents/v1ch15s48.html (accessed July 30, 2023).
[4] https://teachingamericanhistory.org/document/speech-on-the-kansas-nebraska-act-at-peoria-illinois-abridged/ (accessed July 31, 2023).
[5] https://www.nbcnews.com/politics/immigration/fentanyl-seizures-u-s-southern-border-rise-dramatically-n1272676 (accessed July 31, 2023).
[6] https://nypost.com/2023/04/18/bidens-open-borders-are-bringing-contagious-diseases-to-your-neighborhood/ (accessed July 31, 2023).
[7] https://www.nytimes.com/2022/07/25/us/migrant-smuggling-evolution.html (accessed July 31, 2023); https://www.npr.org/2021/04/24/990150761/human-smugglers-bypass-border-patrol-bedeviling-sheriffs-and-ranchers-in-south-t (accessed July 31, 2023); https://www.washingtonexaminer.com/opinion/op-eds/trouble-at-the-border-is-fueling-human-trafficking (accessed July 31, 2023).
[8] https://www.journals.uchicago.edu/doi/10.1086/705604 (accessed July 31, 2023).
[9] https://founders.archives.gov/documents/Adams/99-02-02-3102 (accessed July 31, 2023).
[10] https://vindicatingthefounders.com/library/notes-on-virginia-8.html (accessed July 31, 2023).
[11] https://founders.archives.gov/documents/Madison/01-10-02-0178 (accessed August 4, 2023).
[12] Aristotle, The Politics, book 1, chapter 1 (1252a1-3).
[13] G. P. Grant, “Tyranny and Wisdom: A comment on the Controversy Between Leo Strauss and Alexandre Kojeve”, Social Research 31, no. 1 (spring 1964): 45-72; John Rawls, The Law of Peoples (Cambridge, MA: Harvard University Press, 1999), 36.
Principle of Distinguishing Between Purpose of Federal, and Governments of the States: Maintaining the Union While Preventing Federal Encroachments on the States and Individual Americans
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Amanda Hughes, Blog Essay 69: Principle of Distinguishing Between Purpose of Federal, and Governments of the States – Guest Essayist: Amanda Hughes, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Amanda HughesEssay Read By Constituting America Founder, Actress Janine Turner
Though we might give to such a government certain powers with safety, yet to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism, the definition of which is, a government in which all power is concentrated in a single body. To take the old Confederation, and fashion it upon these principles, would be establishing a power which would destroy the liberties of the people… It was seen that the necessary powers were too great to be trusted to a single body; they, therefore, formed two branches, and divided the powers, that each might be a check upon the other…The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments. That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation. – Alexander Hamilton in a speech, Compromises of the Constitution, June 20, 1788 during the New York Ratifying Convention.
On federal-state confrontation, Hamilton—an aide to General George Washington during the American Revolution and then our first Secretary of the Treasury— in speaking on this topic quoted above, as he argued for the ratification of the United States Constitution: “We might give to such a government certain powers,” he said of the proposed federal government, and yet, he continued, “to give them the full and unlimited powers of taxation and the national forces would be to establish a despotism . . . establishing a power which would destroy the liberties of the people.” Hamilton wanted the states and their people to have power, too, as a counterweight to the danger of federal usurpation. These warnings note that liberty can be destroyed through abrupt or gradual means either by a domestic tyrant or if a foreign force overwhelms it. Hamilton had the answer for both: “The State governments possess inherent advantages, which will ever give them an influence and ascendency over the National Government, and will for ever preclude the possibility of federal encroachments.”
Hamilton made it plain he sympathized with the states: “That their liberties, indeed, can be subverted by the federal head, is repugnant to every rule of political calculation.” In other words, keep the states intact, as a bulwark of freedom for themselves, and as a bulwark against national impingement. This is part of the genius of the Constitution: for every legitimate power, there’s a legitimate counter-power.
As an entity intended to be indestructible, each state has a right, and a duty, to ensure its own integrity and survival. For example, the federal government leads the national defense, but if it won’t, the states must act. For example, one of the state constitutions declares, “Texas is a free and independent State, subject only to the Constitution of the United States, and the maintenance of our free institutions and the perpetuity of the Union depend upon the preservation of the right of local self-government, unimpaired to all the States.”
Additionally, if the federal government attempts to centralize, for example, law enforcement, education, differing circumstances affecting city or county funding or regulatory needs from state to state, then local control can be usurped of its most basic foundations for maintaining self-government and accountability. Through state constitutions, state legislatures, city and town councils, civil systems closest to the people are enabled to uphold Americans in charge of their own governing.
Along with Founders such as Hamilton, others later in American history learned the importance of state sovereignty which meant local control and self-governing. For instance, Salmon P. Chase appointed by President Abraham Lincoln in 1864 as Chief Justice of the United States, in 1869, Chase opined on behalf of the Court, “The Constitution, in all its provisions, looks to an indestructible Union composed of indestructible States.” So how, precisely, does the indestructible Union interact with the indestructible States? That is a question each generation of Americans must carefully discern through the study of history.
America’s Founders, and Framers of the Declaration of Independence and Constitution knew the dangers of centralized government that easily usurped the local decision-making process. From the study of world history, they understood this well leading up to what would be contained in the words of the Declaration of Independence, and fought for in the American Revolutionary War. Though they did not want war, they were willing to do so for independence. They discussed through meeting together, writing letters, pamphlets and newspaper articles about how freedom is not free and that the steps to gain independence would be slow and difficult, but worth it. They understood how a government distant from the people could easily turn into a tyrannical dictatorship of top-down control. From the perspective of America’s Founders, Framers of the Declaration of Independence, and eventually the United States Constitution, it was far better to protect local decision-making that would not remove self-governing from the people than to allow centralization of government to take root. This was the importance they saw in limiting the federal government and ensuring liberty of the states and localities of America.
This understanding was more stark to them each day of work it took to gain their independence from Great Britain and eventually form a different type of government. Samuel Adams emphasized this importance after the Second Continental Congress adopted the Declaration of Independence July 4, 1776. Then a little over a week later the Articles of Confederation were presented on July 12 that would serve as a constitution to get the new nation’s government started. In his speech “On American Independence” on August 1, 1776, Adams stated: “Our Union is now complete; our Constitution composed, established, and approved. You are now the guardians of your own liberties. We may justly address you as the decemviri did the Romans, and say: ‘Nothing that we propose can pass into a law without your consent. Be yourselves, O Americans, the authors of those laws on which your happiness depends.’”
The ideas that animated the debate over the United States Constitution nearly a quarter-millennium ago are as alive today as today’s headlines. The principle of distinguishing between the purpose of federal and state governments cannot be overstated. Maintaining the Union through preventing federal encroachments on the states and individual Americans is vital to the foundation of self-governing and independence. Legal and political issues that threaten the ability of the states to maintain local control continually prove the Constitution so relevant and urgent for American citizens to understand and apply.
Amanda Hughes serves as 90-Day Study Director for Constituting America. She is author of a book on faith and voting, Who Wants to Be Free? (WestBow Press). She is a story contributor for the anthologies Loving Moments and Moments with Billy Graham (Grace Publishing). She served as editor of her father’s book, Adventures, Wit & Wisdom: The Life & Times of Charlie Hughes (WestBow Press). Amanda received her B.A. from Texas State University and her M.A. from Southwestern Baptist Theological Seminary.
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Principle of Free Thought and Speech, a Core Component of a Self-Governing People
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 82: Principle of Free Thought and Speech, a Core Component of a Self-Governing People – Guest Essayist: Tony Williams, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony Williams“The freedom of speech is a principal Pillar in a free Government: when this support is taken away the Constitution is dissolved, and Tyranny is erected on its Ruins.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Pennsylvania Lawyer and Pennsylvania Colonial Representative as having possibly been the author of the article.
The Declaration of Independence asserts the self-evident truth that all human beings are created equal and endowed with natural rights. The Declaration then states that governments are established with the purpose of protecting those rights with the consent of the governed. This Lockean conception of social compact theory supported a representative government in the American republic.
The concept of consensual government naturally supported the idea of freedom of speech. While the nature of free speech differed from America’s modern conception, the principle of political free speech was fundamental to a republican form of government and self-governing society. Expressing political opinions in speech and in print, engaging in hearty debate and deliberation, and giving consent to representatives in legislatures were all essential for self-governance.
In The Federalist No. 51, James Madison wrote, “In republican government, the legislative authority necessarily predominates.” As the first branch of government, Congress most embodied the principle of self-government and representation. The legislative branch, both in Congress and the state legislatures, was the center of deliberation, debate, and consensus.
Indeed, the American founding experienced great deliberative moments that represented profound moments of reflection and discussion. These debates demonstrate the importance of free speech to exchange political viewpoints in a free society. In each case, they show that free debate of clashing viewpoints can result in the common good. For example, the members of the Second Continental Congress were unsure or even opposed to independence in early 1776. A vigorous debate occurred in which both sides of the issue sought to persuade the other. Eventually, the Congress unanimously agreed to independence.
During 1787-1788, the great deliberative moment of making and ratifying the United States Constitution witnessed robust debates between the Federalists and Anti-federalists over the principles of human nature and government. The debates took place in the secret Philadelphia convention, but the vigorous conversation moved into state ratifying conventions, newspapers and pamphlets, private letters, and taverns.
In the early republic, the George Washington presidential administration had its share of highly partisan and contentious debates. The debates over Secretary of the Treasury Alexander Hamilton’s financial plans and the crafting of American foreign policy were rooted in constitutionalism and establishing the right precedents for the new government as prescribed in the new Constitution. These deliberations could be offensive and personal, but they were also deeply rooted in constitutionalism as both sides took the document seriously.
In all of these debates, the key principle was the element of free speech. The representatives and the people freely asserted their views about the best ways to achieve good government. They may have often had rival conceptions of the public good, but they built consensus through sharing and debating those ideas, listening to the arguments of the other side, and trying to persuade others of a reasonable viewpoint. For these reasons, holding to the first principle of free speech and thought has always been a core component of a self-governing people.
Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.
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Principle of Freedom of Association, Undissolved and Unweakened, Either to Associate or Not, and Neither under Coercion nor Force
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, George Landrith Essay 83: Principle of Freedom of Association, Undissolved and Unweakened, Either to Associate or Not, and Neither under Coercion nor Force – Guest Essayist: George Landrith, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, George LandrithEssay Read By Constituting America Founder, Actress Janine Turner
“…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles & Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.
The Bill of Rights doesn’t grant or create rights, but it does outline and protect rights. Our nation’s Founders believed that rights were given to us by our Creator. But they also believed that the proper role of government was to protect God-given rights. The freedom of association is a fundamental right of a free people. The First Amendment lays out the basis for the freedom of association — which simply means we have the right to associate with like-minded people, if we choose to.
The First Amendment explicitly protects religious freedom, freedom of speech and of the press, the right to assemble peacefully, and to petition the government to remedy injustice. While the phrase “freedom of association” does not appear in the United States Constitution, the right is wrapped up in the ideas of freedom of speech, the right to peacefully assemble, and the right to petition our government as well as the Due Process Clause of the Fourteenth Amendment.
It is important to remember that the Bill of Rights was never intended to list every God-given right that we have. The Ninth Amendment explicitly states this point — “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
Likewise, in some ways the Bill of Rights is more a list of limits on the power of government than it is a list of rights. For example, the First Amendment states “Congress shall make no law ….” The Second Amendment says that the right of the people “shall not be infringed.” The Fourth Amendment says that “the right of the people … shall not be violated….” The Eighth Amendment prohibits government from imposing cruel and unusual punishments and excessive bail and fines.
If the Bill of Rights had been intended by our Founders to be a complete and comprehensive list of every God-given right that we had, it would have been much, much longer. The issues raised in the Bill of Rights were things that the Founders had experience with. They had seen the British crown mandate religious practices, limit speech, destroy presses that published disfavored ideas, and try to confiscate American guns. They had also seen Redcoats terrorize Americans, searching and destroying their homes and businesses without due process. They had also seen throughout history a number of abuses by other overbearing and unjust governments. So the Bill of Rights was only a partial listing of the rights that history had taught them were most likely to be abridged by a tyrannical government.
America’s Founders did speak specifically of the freedom of association. Samuel Adams was an ardent patriot, an influential leader of the movement for American Independence, and a cousin of John Adams. In a letter dated February 12, 1779, to James Warren — a fellow advocate for American independence and a Major General in George Washington’s Continental Army — Sam Adams wrote “…there must be Associations of Men of unshaken Fortitude. A general Dissolution of Principles and Manners will more surely overthrow the Liberties of America than the whole Force of the Common Enemy.”
It makes perfect sense that America’s Founders would see the freedom of association as foundational to a free society. They had gathered together and worked together to promote American independence. And the British Crown had attempted to make those associations a criminal activity. America’s Founders understood that they would have to associate and work with other Americans who shared their desire for independence. The British attempt to deny them the right to associate with like-minded Americans was simply an attempt to silence them and prevent them from petitioning the government for redress of their grievances. And only after years of presenting their grievances and being entirely rebuffed did they finally decide to declare their independence.
A logical extension of the rights of free speech and the right to peacefully assemble is the freedom of association. So while the actual words “freedom of association” do not appear in our Bill of Rights, the principle of freedom of association is clearly intended by our Founders and the United States Constitution. If you only have the freedom of speech as an individual, but cannot align yourself with others who share your views, that would give government the power to limit your ability to effectively speak your mind or petition the government.
Likewise, freedom of association includes the right for a group or association to establish its own rules for governing the internal affairs of the group. Imagine if government could regulate political parties or issues-based groups and how they operate. If government had this power it could effectively stifle a political group’s ability to petition the government or to speak out on policies that it supports or opposes.
Freedom of association also includes the freedom to not associate. An example of unwanted association is when a group tries to force employees to contribute to spending on ideological or political issues that employees may disagree with. The point is that government should not be requiring people to associate or preventing them from associating. In a free society, people get to decide what groups they agree with and which ones they disagree with and to either associate or not to associate based on their own determination — not government mandates.
We have a wide variety of possible associations — family, friends, neighbors, schools, the workplace, clubs, political parties, issue-based groups, etc. Not all are voluntary — for example, we are typically born into a family, we don’t choose the family we belong to. But once we become adults, we do choose how closely we want to align with and associate with our family. Likewise, young children don’t really choose to attend school or even a particular class.
But by the time we are adults, our associations are by choice — the church we go to or don’t go to, the job that we choose to pursue, and the clubs or organizations that we join or support. In a free society, government ought not be dictating what friendships, memberships, or groups we must maintain or support, and alternatively those which we must avoid or spurn. And government should not impose rules upon groups which discourage membership or punish those who align with the group.
In 1958, in NAACP v. Alabama, the Supreme Court unanimously held that the freedom to associate was part and parcel of free speech and peaceable assembly and that it also flowed from the Due Process Clause of the Fourteenth Amendment. The case involved the State of Alabama trying to deny the NAACP the right to operate within the state unless the organization fully disclosed its membership and donor lists.
The NAACP was concerned that such disclosure could be used to harass its members and would significantly limit its ability to align with Americans who supported civil rights and equal rights for all citizens. The U.S. Supreme Court unanimously held that the freedom to associate was part of the ability to engage in free speech and to peacefully assemble and that advancing your beliefs through association with like-minded people was an inseparable part of the Bill of Rights and the Due Process Clause of the Fourteenth Amendment.
Freedom of association is part of American life since the nation’s earliest days. We even associate with other Americans via social media. It is instructive that totalitarian regimes like North Korea, China and Iran outlaw free association. If you’re spotted visiting or dining with the wrong people, these regimes will punish you. If you attend religious services, or have friends who attend such services or have friends who are known to support reforms, you will be punished.
Even China’s social credit program is designed to enforce a mechanism that requires its populace to maintain only those relationships that are approved of by the government. No free society can tolerate a government that believes it has the power or authority to dictate associations in this fashion.
America’s Founders wisely understood that a free people must have the right to think for themselves, to speak freely, to petition their government without reprisals, to create associations to further their beliefs and leverage their speech, and to work individually or in association with others for policy reforms. The nation of America has been blessed that its Founders recognized this important fundamental right of freedom of association.
If America hopes to continue to be a free people, then we must continue to embrace and defend free speech, freedom of the press, freedom of conscience, the right to petition the government and the freedom of association. These freedoms are foundational elements of self-determination.
George Landrith is the President of Frontiers of Freedom.
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Principle of Constitutional Limits on the United States Government To Tax
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 80: Principle of Constitutional Limits on the United States Government To Tax – Guest Essayist: Tony Williams, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsEssay Read By Constituting America Founder, Actress Janine Turner
“How then will it be possible, under these circumstances, to endure this Tax which is laid upon us by Parliament? –Add to this, that it will drain the Province of the little Cash left among us, which at present barely serves for a Medium of Trade…And if you should be active in bringing this Tax upon yourselves, at it will inevitably destroy our constitutional Privileges, so it will perpetuate to the latest Posterity, a most despicable Opinion of the civil Principles of their Ancestors…But should your Representatives be instructed by you, (which God forbid!) by a solemn and public Act to promote the Operation of this Law, you will implicitly declare that you resign that inestimable Right; and, in Consequence of such Resignation, you may next expect a Tax on your Lands; and after that one Burthen on the Back of another, till you are reduced to a State of the most abject Poverty…The Effects I presage are dreaded far and wide. –Would to God our Terror was merely panic, and that the Disagreeableness of the Act arose only from its Novelty. –But our Fears are founded on Reason and universal Experience…Consider gentlemen, that the least infraction of your Liberties is a Prelude to Encroachments…Indolence –Indolence has been the Source of irretrievable Ruin –Languor and Timidity, when the Public is concerned, are the origin of Evils mighty and innumerable” –A letter authored only using the initials W.B. “To the Inhabitants of the Province of the Massachusetts-Bay,” concerning the Stamp Act, appeared in The Boston-Gazette and Country Journal, October 7, 1765.
In 1765, the Stamp Act ignited a storm of protest and led to a series of events that sparked a revolution of the American colonies against Great Britain. The dreaded act was a British tax on colonial stamps on newspapers, legal documents, and playing cards among other items. The taxes provoked a strong reaction against the colonists who raised cries that they were being taxed without representation in Parliament.
The colonists resorted to several different forms of protest to the taxes. At first, they petitioned the king and Parliament claiming their constitutional liberties as Englishmen and their natural rights. Soon after learning of the impending taxes, in December 1764, the Virginia House of Burgesses was the first to level a protest and sent a petition stating that, “The people are not subject to any taxes but such are laid on them by their own consent.”
In addition, colonists formed mobs that intimidated and coerced the Stamp Act collectors into not collecting the tax and resigning their offices. Some were threatened with violence, others were burned in effigy, and one was frighteningly buried alive until he relented. Other acts of violence erupted, with Boston mobs tearing down the Stamp collector’s office and vandalizing and plundering the home of Lieutenant Governor Thomas Hutchinson.
The colonists also began to demonstrate a sense of common identity and unity when nine colonies agreed to meet at the Stamp Act Congress in New York. After their deliberations, the delegates agreed to a declaration of rights asserting their fundamental liberties. Foremost among these was the right not to be taxed without their consent. “It is inseparably essential to the freedom of a people, and the undoubted right of Englishmen, that no taxes be imposed on them, but with their own consent, given personally, or by their representatives.”
British merchants were devastated financially by the colonial boycotts of British goods. They petitioned the king and Parliament for relief and eventually found it when Parliament revoked the Stamp Act Taxes. However, the Parliament also passed the Declaratory Act, which affirmed that principle that the body could legislate and tax the colonists in “any case whatsoever.”
The clashing perspectives of the colonists and British showed a fundamental disagreement over taxation and the powers of government. The parliamentary assertion of unlimited authority to govern the colonies led to additional attempts to tax the colonists, who predictably stood by the principle of no taxation without consent and resisted the taxes.
In 1767, Parliament passed the Townshend Acts which were a tax on a variety of items including glass, paint, paper, and tea. The colonists again resolved not to import British goods, which dried up trade between Great Britain and her colonies. Parliament relented and revoked the taxes but soon passed the Tea Act which collected three pennies per pound.
While it might seem like a trifling amount, Virginian George Washington explained that it was the principle that was at stake rather than the money. “What is it we are contending against? Is it paying the duty of 3d. per pound on tea because burdensome? No, it is the right only…as Englishmen, we could not be deprived of this essential and valuable part of our Constitution.”
The Boston Tea Party in late 1773 was the clearest expression of colonial opposition to being taxed without consent. The British retaliated harshly with the Coercive Acts shutting down the Port of Boston, banning town meetings and self-government, and allowing British colonial officials to escape American justice. This course led to the First Continental Congress and the first shots of the war being fired at Lexington and Concord. One of the grievances of the Declaration of Independence was “imposing Taxes on us without our Consent.”
During the war and after, however, the opposition to central authority provoked by resistance to British tyranny meant that one of the problems in the new nation was the inability to tax and collect adequate revenue. During the period, the Continental and Confederation Congress relied primarily on requisitions to the states for taxes, which were frequently ignored. Meanwhile, the states and national government were burdened by large war debts. The national government under the Articles of Confederation was especially unable to pay it off or use revenue to pay for armies to suppress internal rebellions such as Shays’ Rebellion.
Article I of the new United States Constitution empowered the Congress to pass taxes with the consent of the people through their elected representatives. Article I, section 8 stated: “The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States.”
However, because of the fear that the Senate might form a corrupt cabal with the executive branch, and because the House of Representatives was the only popularly-elected branch of government and was closest to the people, any bills in Congress for taxes had to start in the House. Article I, section 7 states, “All Bills for raising revenue shall originate in the House of Representatives.”
Taxation in the United States was often controversial from the tariff and protective tariff in the nineteenth century to the escalating tax rates to fund a growing federal government in the twentieth and twenty-first centuries. The ideals of the American founding continued to shape American concerns and fears of centralized government and taxation. Supreme Court Chief Justice John Marshall asserted in McCulloch v. Maryland (1819) that, “The power to tax involves the power to destroy.” Americans have believed since the founding that a government that taxes too much destroys liberty.
Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.
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Principle of a Nation’s Longevity Upon Consisting of Public and Private Virtue
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 89: Principle of a Nation’s Longevity Upon Consisting of Public and Private Virtue – Guest Essayist: Joerg Knipprath, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read By Constituting America Founder, Actress Janine Turner
Religious freedom, assembling, speaking freely and defending the nation’s liberty. “While the People are virtuous they cannot be subdued; but when once they lose their Virtue they will be ready to surrender their Liberties to the first external or internal Invader. How necessary then is it for those who are determind to transmit the Blessings of Liberty as a fair Inheritance to Posterity, to associate on publick Principles in Support of publick Virtue. I do verily believe, and I may say it inter Nos, that the Principles & Manners of New England produced that Spirit which finally has establishd the Independence of America; and Nothing but opposite Principles and Manners can overthrow it.” – Samuel Adams, in a letter to James Warren, Philadelphia, February 12, 1779.
In A Defence of the Constitutions of Government of the United States, John Adams mused about a lengthy quote from Aristotle’s Politics. There, Aristotle extols the benefits of a polis controlled by a broad middle class and warns of the danger to societies if the number of the middle class dwindles. His assessment of the best practical political system is consistent with what is called the “Golden Mean,” a concept taken from Aristotle’s Nicomachean Ethics. For the most part, excellence of the soul—virtue—lies in taking a path between two extremes that are vices. Another key element of classical Greek philosophy was that excellence of the person and of the state were intimately connected, that the polis was the soul writ large, so the analogy of the benefits of moderation for the individual to the benefits of middle-class government for the state was obvious.
It is worth quoting Aristotle at length on this point, as Adams did:
This critique of pure oligarchic or democratic systems has been summed up as the unwelcome prospect of the rich stealing from the poor in the former, and the poor stealing from the rich in the latter.
Adams quoted this passage with approbation, but occasionally expressed opinions which seemed to be at odds with Aristotle’s political theory. Aristotle proposed a mixed government (mikte) as the most stable and conducive to human flourishing. The mixed government would not be democratic or oligarchic but would have elements of both in a mediated balance, such as in Athens, where the popular Assembly was balanced by the Council of 500 and its steering committee. Adams’s own work in drafting the Massachusetts Constitution of 1780 incorporated a similar bicameral structure in a Senate and a House of Representatives, with qualification for election to the former requiring ownership of an estate three times the value of property needed for election to the latter. But he also put in place a further structure of separation and balance of powers among the three branches of government, explicitly affirmed in Article XXX of that constitution, so that “it may be a government of laws and not of men.”
Aristotle’s description of the instability of pure systems such as oligarchy and democracy was not new with him. Plato and other Greeks had done likewise. American writers had similar misgivings. James Madison addressed such instability in his writings in The Federalist, especially in his discussion of factions in essay No. 10. Aristotle’s observation that “extensive governments are least liable to these inconveniences; for there those in the middle state are very numerous; whereas, in small ones, it is easy to pass to the two extremes, so as hardly to have any medium remaining, but the one half rich, and the other poor,” sounds remarkably like Madison’s defense of the national government.
Factions are the result of the inevitable inequality of rights in property which proceeds from the natural inequality of talents. “Those who hold, and those who are without property, have ever formed distinct interests in society.” Moreover, because of the inherent nature of democracies, where a small number of citizens conducts the government in person, those factions are most likely to become entrenched, with the stronger party sacrificing the weaker. “Hence it is, that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security, or the rights of property; and have, in general, been as short in their lives, as they have been violent in their deaths.” This remark might as well have been a summary of Athenian politics. Again, Aristotle’s observation, “When, in consequence of their disputes and quarrels with each other, either the rich get the better of the poor, or the poor of the rich, neither of them will establish a free state,” matches Madison’s critique.
The instability and short survival of democracies carried over to other small political entities.
Specifically,
Samuel Adams’s letter to James Warren quoted in the introduction to this essay tied stable government and individual liberty to virtue and bound private and public virtue to each other. This emphasis on the interdependent virtue of the citizen and of the society was the essence of classical republicanism and a fundamental concept in the political philosophy of Greek and Roman writers. Moreover, Adams confided to his fellow New Englander that it was the “Principles & Manners” of that region which produced the spirit of liberty that fueled the drive to American independence. In the views of many New Englanders, especially Samuel’s cousin John Adams, widely-distributed land ownership of medium size lay at the heart of developing those New England principles that allowed for private and public virtue to take root.
In that letter to Warren, Adams also echoed Aristotle’s identification of a free city with a large middle class, whose ownership of a moderate estate made them most receptive to governance based on reason. Government by reason is analogous to the exercise of public or civic virtue and is most conducive to happiness (eudaimonia). When Aristotle declares, “It is plain then that the most perfect community must be among those who are in the middle rank,” he is associating excellence of government with a middle-class society. Excellence was arete in Greek. In Rome, the Latin translation became virtus and denoted a particular type of attribute and action that connected private character and public conduct.
The inevitable link between widespread property ownership of land, a virtuous citizenry, liberty, and survival of republican government was a common theme outside New England, as well. Although property ownership in the South was somewhat more complex due to the existence of the planter class in the Tidewater regions, other regions of the area still had a large class of yeoman farmers with moderate estates. Two of the most prominent advocates of Southern agrarian republicanism were Thomas Jefferson and John Taylor. Jefferson sought to realize his idealized virtuous republic of artisans and yeoman farmers politically through his promotion of land sales in the Old Northwest and the acquisition of Louisiana. Taylor’s writings on land ownership, virtue, liberty, and republican institutions brought systematic cohesion to agrarian republicanism and tied its principles to contentious issues of public policy.
But faith in a virtuous middle class as the source of personal liberty and political stability was not blind. Various writers, including John Adams in 1776, expressed reservations about the capacity of Americans to acquire the virtue necessary for self-government. New Englanders’ faith in their virtue and their fitness for republican government was shaken severely by the tax rebellion of Daniel Shays and his followers in 1786. Perhaps such virtue was not possible without a strong hand of government to correct deviations. More Americans were forced to confront that issue during and after the Whiskey Tax Rebellion in Pennsylvania from 1791 to 1794. After all, in both scenarios, the challenge to the republican governments had come from yeoman farmers, the supposed embodiments of republican virtue.
Southern agrarians had always been more skeptical that there was sufficient virtue among politicians to maintain republican government. Their experience with the turbulence and corruption of state governments after independence only confirmed their doubts. Madison expressed that sentiment in essay No. 51 of The Federalist. While there was some basis to believe that the people might acquire the requisite virtue, in the case of politicians it was best to assume that “the better angels of [their] nature,” to borrow Abraham Lincoln’s famous language from years later, would not direct their actions. It was more likely that pure self-interest and desire for power would be their motivation.
Therefore,
Those auxiliary precautions lay in the structure of the government under the Constitution, primarily a separation of powers and blending and overlapping of functions as in John Adams’s Massachusetts constitution.
Madison was not alone in declining to place all bets for success of republican self-government and liberty on human virtue. Samuel Adams may have been correct that those “Blessings of Liberty” cannot be passed on without cultivating virtue in the people, especially the virtues of the Aristotelian golden mean. Self-government requires self-restraint. But virtue, though necessary, may not be sufficient. “The best republics will be virtuous, and have been so,” the other Adams—John—concluded in the last pages of the multivolume Defence in the somewhat stilted syntax of his time,
Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.
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Principle of Civil Discourse To Keep Representative Government, Unhindered Freedom of Speech in the Airing of Grievances
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 86: Principle of Civil Discourse To Keep Representative Government, Unhindered Freedom of Speech in the Airing of Grievances – Guest Essayist: Andrew Langer, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerEssay Read By Constituting America Founder, Actress Janine Turner
“To suppress Enquiries into the Administration is good Policy in an arbitrary Government: But a free Constitution and freedom of Speech have such a reciprocal Dependence on each other that they cannot subsist without consisting together.” – Pennsylvania Gazette, November 17, 1737, printed by Benjamin Franklin, later reprinted in the Barbados Gazette, 1738, and attributed to Andrew Hamilton, a Pennsylvania Colonial Representative, and lawyer who defended John Peter Zenger who was arrested for criticizing the government, as having possibly been the author of the article.
The age-old proclamation made in the Pennsylvania Gazette, attributed to Andrew Hamilton, regarding the “reciprocal dependence” between the United States Constitution and free speech, resonates powerfully with the principles held dear by anyone deeply concerned with balance of power between individuals and their government: the inseparability of a free constitution and freedom of speech. For a republican form of government to remain genuinely representative, it is imperative to ensure that citizens can air their grievances without fear of retaliation. To suppress the voice of the people is, in effect, to suppress the very essence of democracy which is the means a representative republic uses to make apparent the consent of the governed.
At the heart of a representative government lies the principle that those in power are there to serve, and not to dictate. They are but emissaries, chosen by the populace to voice their hopes, aspirations, and concerns. Such representation is hollow if the populace cannot, or is afraid to, communicate openly.
Civil discourse, which is simply the ability to discuss and debate matters of public interest in a reasoned and respectful manner, is the bedrock upon which representative government stands. Without it, the bridge between the representatives and those they represent is broken. The essence of representative government is lost if its constituents cannot engage in free discourse without fear of persecution.
Traditionally, classical liberals (which is how one can describe most, if not all, of the founding fathers) firmly believe in the principle of minimal government intervention in the lives of its citizens. Freedom of speech, as a cornerstone of liberty, is not just the ability to speak one’s mind but to do so without fear of government retribution. To silence or suppress speech is to curb the very freedom that serves as a bulwark against tyranny.
The case of John Peter Zenger, defended by Andrew Hamilton, stands as a testament to the dangers of a government that seeks to stifle criticism. Arrested for merely voicing his critique of the establishment, Zenger’s plight underscores the importance of preserving unhindered freedom of speech. When governments are allowed to decide what can and cannot be said, we tread perilously close to the realms of despotism.
The quote from the Pennsylvania Gazette highlights a profound truth: a free constitution and freedom of speech are interdependent. Without the liberty to speak one’s mind, a constitution, however free in letter, becomes tyrannical in spirit. Conversely, freedom of speech without a constitution that protects and upholds it is but an illusion.
The reason for this reciprocal relationship is clear. A free constitution provides the framework within which rights, including freedom of speech, are preserved. Meanwhile, unhindered freedom of speech ensures that this constitution remains truly representative, constantly held to account by the voice of the people.
In an age where voices are increasingly stifled under the guise of various reasons, it is paramount to remember the wisdom of yesteryears, as echoed by Andrew Hamilton. To suppress inquiries into administration might be the hallmark of autocracy, but in representative government, the voice of the people must remain unbridled and unbroken.
In any dynamic society that prides itself on progress, innovation, and the welfare of its people, the free flow and exchange of ideas is not just a luxury, but an absolute necessity. The significance of this cannot be overstated, particularly when it comes to addressing and solving the myriad problems society faces. At their core, the principles upon which this nation was founded cherish the values of individual freedom, limited government, and the sanctity of personal choice. This philosophy acknowledges that every individual, with their unique experiences and perspectives, has the capacity to contribute to the vast tapestry of human knowledge. However, this can only be realized if they are allowed and encouraged to express themselves freely, even if their ideas are unpopular or deemed contentious.
At the foundation of the free exchange of ideas is the belief in the “marketplace of ideas,” a theory that the truth will emerge from the competition of ideas in free, transparent public discourse. Just as economic markets rely on competition to produce the best goods and services, intellectual progress requires a contest of ideas. Suppressing unpopular or controversial ideas, even those deemed false or harmful, doesn’t necessarily make them disappear. Instead, it drives them underground where they are not subject to public scrutiny, critique, and potential refutation.
Moreover, it creates a “marketplace of ideas.” Many of the most groundbreaking discoveries and social movements in history were once viewed as controversial or even heretical. Galileo’s heliocentric model and the rights of women to vote were both, at different times, unpopular ideas. Without the freedom to challenge prevailing notions and the status quo, society would stagnate, and advancement would be hindered. A society that is open to the free exchange of ideas is more adaptable, resilient, and inventive.
Free speech also offers protection from despotism and tyranny. One of the most potent tools at the disposal of tyrannical regimes is the suppression of speech and the curtailment of the free exchange of ideas. By controlling the narrative and silencing dissent, these regimes can maintain power and perpetuate their ideologies unchallenged. History has repeatedly shown the dangers of this approach. Protecting even unpopular speech ensures a check against potential governmental overreach and tyranny.
One can also not understate the importance of freedom of speech to the betterment of men and women themselves, outside of just the political realm. On an individual level, exposure to a wide array of ideas, even those that challenge our deeply held beliefs, is essential for personal growth. It encourages critical thinking, promotes empathy by understanding various perspectives, and enriches our knowledge base. Suppressing unpopular speech denies individuals these opportunities. Promoting the greatest amount of speech ensures a vibrant civil society.
The freest speech also is a way to ensure that society solves its own problems. No society is without its problems, and often, it is only through open dialogue and the free exchange of ideas that these issues come to light. Unpopular speech can draw attention to overlooked issues, catalyze movements for change, and present alternative solutions to pervasive problems. Silencing such speech, on the other hand, can perpetuate ignorance and hinder society’s ability to address its challenges.
The suppression of speech, particularly when it involves the silencing of religious or ethnic expressions, can have dire consequences on societal cohesion and stability. Yugoslavia, under its Communist regime, is a poignant example of this phenomenon. The country, a mosaic of ethnicities and religions, was kept together through strong centralized governance and strict control over nationalist sentiments. The Communist authorities aimed to forge a unified Yugoslav identity, which involved suppressing religious and nationalist expression, relegating it to the private sphere, and often demonizing it in the public sphere. This suppression did not eradicate the deeply-rooted ethnic and religious sentiments; rather, it drove them underground, where they festered, accumulated grievances, and lacked the necessary open space for dialogue and reconciliation.
When the Communist regime in Yugoslavia disintegrated in the early 1990s, the suppressed sentiments and grievances came to the surface with a vengeance. Without the structures or platforms for peaceful dialogue in place, these sentiments exploded into sectarian violence, leading to a series of brutal wars that resulted in the dissolution of Yugoslavia. Had there been a more open space for religious and ethnic expression during the Communist era, communities might have had the opportunities to address and possibly reconcile their differences or at least coexist peacefully. Instead, the suppression created a vacuum, and when the lid was abruptly removed, the pent-up frustrations and hostilities were unleashed in a tragic wave of violence. This serves as a powerful reminder of the dangers inherent in suppressing speech and the importance of fostering open dialogue in multi-ethnic and multi-religious societies.
The importance of the free flow and exchange of ideas, even those that are unpopular, cannot be emphasized enough. Such freedom is at the very core of a thriving, advancing society. In embracing the free exchange of ideas, the fundamental human right to express oneself is championed, and fostered is an environment ripe for innovation and the holistic betterment of society.
Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.
A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.
Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.
He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.
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Principle of Freedom of Assembly
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Scot Faulkner Essay 85: Principle of Freedom of Assembly – Guest Essayist: Scot Faulkner, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Scot FaulknerEssay Read By Constituting America Founder, Actress Janine Turner
“New England town meetings have proved themselves the wisest invention ever devised by the wit of man for the perfect exercise of self-government and for its preservation.” – Thomas Jefferson, 1816
“Local assemblies of citizens constitute the strength of free nations. Town-meetings are to liberty what primary schools are to science; they bring it within the people’s reach, they teach men how to use and how to enjoy it. A nation may establish a system of free government, but without the spirit of municipal institutions it cannot have the spirit of liberty.” – Alexis de Tocqueville, 1835
The concept of people openly gathering to discuss matters of public interest was developed among the ancient Greek city states in the 6th Century B.C. It became known as “Athenian Democracy” under the leadership of Pericles (461-429 B.C.) during Athens’ “Golden Age.” Participation was open to all adult free male citizens.
In actions that would be repeated throughout history, Athenian public meetings were suppressed to centralize government power. This occurred in 322 B.C. by the rulers of the Macedonian Empire, first Philip II and then his son, Alexander “the Great.”
Freedom of assembly vanished during the Roman Empire and the feudal states. People could still petition the chief, warlord, or king for grievances, but local democracy was lost.
Iceland rekindled community-based democracy in 930 A.D.
The Althing (Norse for “assembly field”) was an open area (near present day Reykjavik) reserved for the annual gathering to discuss and decide issues facing the community. The presiding official, Lögsögumaður (Norse for “Law Speaker”), stood on a central rock outcropping known as the Lögberg (Norse for “Law Rock”). He established the procedures for the Althing and declared decisions after open discussion and voting. All free men had the right to attend and participate.
The Althing lost its authority when Iceland was annexed by Norway in 1262.
In 1231, the freedom of assembly, and early federalism, arose among the various independent regions (Cantons) in Switzerland. The Landsgemeinde (German for “cantonal assembly) was established as a system of direct democracy, open voting, and majority rule among the communitas hominum (Latin for “the community of men”). This terminology was to emphasize that it was an assembly of all citizens, not just the elite.
Citizens of the Swiss Cantons fiercely defended their assemblies. In 1499, they defeated the forces of Emperor Maximillian I, the Holy Roman Emperor, at the battle of Dornach. They retain their system to this day.
The practice of holding town meetings in Colonial America developed from 17th Century English “vestry” meetings. These meetings allowed parishioners to discuss and decide issues relating to their local parish. These became integral to New England communities in the mid to late 1600s. Their agendas ranged beyond church governance to community matters.
In 1691, the Colonial Parliament (General Court) of the Commonwealth of Massachusetts passed a Charter that declared that final authority on bylaws rested with town meetings. In 1694, the Massachusetts General Court granted town meetings the authority to appoint assessors. In 1715 it granted town meetings the right to elect their own presiding officers (moderators) instead of relying on outside appointees.
Colonial meeting houses remain places of reverence in small towns throughout New England.
It is not surprising that eradicating town meetings, and restricting the right to free assembly, were key elements in Britain’s suppression of America’s Independence movement in the early 1770s.
Lord North, the British Prime Minister (1770-1790), instituted harsh measures to suppress dissent and disrupt the culture of self-government, which he viewed as the root cause of the chaos. On May 2, 1774, North declared Massachusetts was “in a distempered state of disturbance and opposition to the laws of the mother country.”
On May 20, 1774, the British Parliament passed the Massachusetts Government Act, which nullified the Massachusetts Charter of 1691. It abolished local town meetings because, “a great abuse has been made of the power of calling them, and the inhabitants have, contrary to the design of their institution, been used to treat upon matters of the most general concerns, and to pass dangerous and unwarrantable resolves.” Ongoing local meetings were replaced by annual meetings only called with the Colonial Governor’s permission, or not at all.
A series of five punitive acts were passed by Parliament intended to restrict public discourse and punish opponents. It was England’s hope the “Intolerable Acts” would intimidate rebellious Colonists into submission. The “Acts” ignited a firestorm of outrage throughout Colonial America. More importantly, it generated a unity of purpose and inspired a willingness for collective action among leaders in the previously fragmented American colonies.
In a bold “illegal” act to assert its right to free assembly, the First Continental Congress met in the Carpenters Hall in Philadelphia from September 5 to October 26, 1774. Twelve of the thirteen colonies (Georgia opted out) were represented. They issued the “Declaration of Rights and Grievances,” the first unified protest of Britain’s anti-colonial actions.
The British Crown’s assault on the right to free assembly was among the top Grievances listed in the Declaration of Independence less than two years later.
Scot Faulkner is Vice President of the George Washington Institute of Living Ethics at Shepherd University. He was the Chief Administrative Officer of the U.S. House of Representatives. Earlier, he served on the White House staff. Faulkner provides political commentary for ABC News Australia, Newsmax, and CitizenOversight. He earned a Master’s in Public Administration from American University, and a BA in Government & History from Lawrence University, with studies in comparative government at the London School of Economics and Georgetown University.
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Principle of Freedom of Religion
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Patrick Garry Essay 88: Principle of Freedom of Religion – Guest Essayist: Patrick Garry, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Patrick GarryEssay Read By Constituting America Founder, Actress Janine Turner
“Whereas Almighty God hath created the mind free; that all attempts to influence it by temporal punishments or burthens, or by civil incapacitations, tend only to beget habits of hypocrisy and meanness, and are a departure from the plan of the Holy author of our religion, who being Lord both of body and mind, yet chose not to propagate it by coercions on either, as it was in his Almighty power to do;…that to compel a man to furnish contributions of money for the propagation of opinions which he disbelieves, is sinful and tyrannical;…and finally, that truth is great and will prevail if left to herself; that she is the proper and sufficient antagonist to error, and has nothing to fear from the conflict, unless by human interposition disarmed of her natural weapons, free argument and debate, errors ceasing to be dangerous when it is permitted freely to contradict them:…Be it enacted by the General Assembly, That no man shall be compelled to frequent or support any religious worship, place, or Ministry whatsoever, nor shall be enforced, restrained, molested, or burthened in his body or goods, nor shall otherwise suffer on account of his religious opinions or belief;” – Thomas Jefferson, Virginia Statute for Religious Freedom, January 16, 1786.
Freedom of religion has been a foundational belief ever since America’s colonial beginnings in the seventeenth century. Most of the colonies were religiously inspired enterprises, and the early laws and charters of the colonies reflected those religious beliefs.
The European settlement of America owed much to the desire of the new settlers to escape the religious oppression of their old country. They braved the long, treacherous ocean journey to come to an unknown land filled with unknown dangers, all for the sake of finding the freedom to practice their religion.
A belief in freedom of religion stems from the conviction that religion reflected a higher source of authority than do civil governments; therefore, those governments should not coerce individuals from following their religious beliefs, especially when those beliefs do not threaten the state or pose harm to any other individual.
England, an originating country for many early settlers, possessed a state established religion—the Church of England. The government both supported this religion, with tax revenues, and regulated its theological practices. This meant that individuals who did not adhere to the tenets of the Church of England and who did not wish to belong to that religion were nonetheless forced to support it. Moreover, religious dissidents were often oppressed and discriminated against in various ways. It was this oppressive environment from which many American settlers wished to escape.
Once in America, the settlers initially formed their colonies around the single religion of their belief. However, as settlement increased and the colonies became more diverse in their population, the colonies in turn became more diverse in their religious identities, with the result that the American colonies acquired a practice of religious tolerance unknown in Europe.
This tolerance continued after America achieved its independence and formed a constitutional republic. The very first freedom enshrined in the First Amendment of the Bill of Rights guarantees individuals the right to freely exercise their religious beliefs. To further protect religious freedom, the First Amendment also prohibits Congress from establishing a state-run religion, as England had done with the Church of England.
Over the years, courts have grappled with the application of these religious liberty provisions in the First Amendment. The courts have ruled that the Free Exercise Clause prohibits government from targeting religion for selective burdens or discriminating against religious believers. However, because courts have not wanted to adjudicate all the areas in which religious beliefs might conflict with secular laws, the courts have held that neutral and generally applicable laws that incidentally burden religion are not unconstitutional. This holding has left religious believers vulnerable on a number of fronts, and so Congress in 1993 by an overwhelming margin passed the Religious Freedom Restoration Act, which sought to strengthen legal protections for religious liberty. Unfortunately, during the thirty years since passage of that law, the commitment to religious liberty on behalf of many political and governmental leaders appears to have waned.
With respect to the Establishment Clause of the First Amendment, courts have been even more confused and divided. Whereas some judges believe that the Establishment Clause was intended as another means by which to protect religious liberty, other judges have seen the Clause as a tool by which to prohibit any interaction between government and religion, thereby preventing religious institutions from receiving any government benefits or recognitions that all other social institutions are entitled to receive. This latter position rests on the argument that any government benefit given to a religious organization, regardless of whether that benefit has anything to do with religious beliefs, amounts to an unconstitutional establishment of religion. Essentially, this argument equates a Christmas display of a nativity scene in a public park with the tax-supported Church of England.
The judicial dispute on the Establishment Clause has come down to a debate over whether the Clause was intended to protect religious liberty or the secular identity of society. Recently, the U.S. Supreme Court has greatly clarified the nature and purpose of the Establishment Clause. Several years ago, it held that a cross monument constructed by private parties to honor military veterans, but now standing on public property, did not rise to the level of an unconstitutional establishment of religion. And in 2022, the Court held that a public school district did not violate the Establishment Clause by not forcibly prohibiting an assistant football coach from voluntarily saying a private prayer at mid-field after the conclusion of a game.
Opinion polls and political agendas suggest that Americans may not value religious liberty in the same manner as eighteenth-century Americans did. But the constitutional Framers foresaw that religious liberty should not be left up to the dictates of political opinion. The Framers so valued religious liberty that they placed it as the first liberty protected by the Bill of Rights. And unlike contemporary critics who see religion as divisive, the Framers valued religion for contributing to the civic virtue and welfare of society.
For the constitutional Framers, freedom of religion was necessary not just to protect what was considered the most important individual liberty, but to protect the vitality and thriving of religious beliefs and institutions that in turn did much to strengthen society. Through religion, citizens learned the values of public service, honesty, and the rule of law. Religious belief combatted the vices of selfishness and greed and helped strengthen the virtues of self-sacrifice and self-restraint, which were seen as necessary traits for a stable nation.
Patrick M. Garry is professor of law at the University of South Dakota. He is 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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Defending Liberty and Rights in Property Through the Fruits of One’s Own Labor
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 79: Defending Liberty and Rights in Property Through the Fruits of One’s Own Labor – Guest Essayist: Joerg Knipprath, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read By Constituting America Founder, Actress Janine Turner
Alexander Hamilton responded in numerous essays in The Federalist to the charges that Congress might impose excessive taxation. Among his efforts to calm the torrents of dissent was essay No. 21, where he opined that imposts, excises, and other duties on articles of consumption were preferable to other types of taxes. Consumption taxes were unlikely to be excessive, as they had a built-in safety valve. The higher the tax, the less of the article would be consumed, which would result in less revenue collected. “This forms a complete barrier against any material oppression of the citizens, by taxes of this class, and is itself a natural limitation of the power of imposing them.”
As a supporter of the wealthy merchant class, Hamilton might have been supportive of consumption taxes for another reason. In England as well as North America, the tendency was for legislative majorities to impose most taxes on other than their own class. As the historian Forrest McDonald describes the matter of taxes as “gifts” to the government in his book Novus Ordo Seclorum, “When deciding whether to give away one’s own property or somebody else’s, humankind—being imperfect—has a disposition to give away somebody else’s. Hence, for several centuries, the landed gentry in the House of Commons elected to have as much of the tax burden as possible fall either upon their tenants or upon gentlemen of trade. When the latter gained influence and power proportionate to their wealth, this trend was altered; but the costs of government rose astronomically during the eighteenth century, and country and city gentlemen tended to meet these costs by multiplying the kinds and amounts of taxes upon consumer necessities. They volunteered as many of the ‘gifts’ as possible from the unrepresented poor.”
In the American colonies, according to McDonald, legislatures were mostly controlled by the landed gentry, elected by the broad proportion of the adult male population which owned sufficient land to meet the property qualifications for voting. “The American colonists developed an aversion to taxation for which they were to become celebrated. What was less celebrated, they tended to place the main burden of taxation, insofar as was possible, on merchants and on the well-to-do. The euphemism for this practice was requiring the most taxes from those who were best able to pay; again the reality was requiring somebody else to make the gift.” James Madison, in his 1792 essay, “Property,” was making that same point when he wrote, “A just security to property is not afforded by that government under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor.” Those attributes of taxation remained, although mainly in the form of income taxes, which grind the middle and upper middle class.
Thomas Jefferson, on the other hand, rather predictably supported taxes on merchants and manufacturers. In April of 1811, in a letter to General Thaddeus Kosciusco, Jefferson wrote of his ideas about restraining the tendency for manufacturing to concentrate wealth and encourage corruption, dependence, and servility among the population. “…. [W]e shall soon see the final extinction of our national debt, and liberation of our revenues for the defence and improvement of our country. These revenues will be levied entirely on the rich, the business of household manufacture being now so established that the farmer and laborer clothe themselves entirely. The rich alone use imported articles, and on these alone the whole taxes of the General Government are levied. The poor man who uses nothing but what is made in his own farm or family, or within his own country, pays not a farthing of tax to the general government, but on his salt; and should we go into that manufacture also, as is probable, he will pay nothing. Our revenues liberated by the discharge of the public debt, and its surplus applied to canals, roads, schools, etc….” Jefferson did not take into account the imposition of tariffs on imported goods, which increased the influence and wealth of domestic manufacturers at the expense of the landed yeomanry, raised the prices of domestic goods, and caused frequent sectional conflicts between the South and West on the one hand, and the Northeast on the other.
Other than proceeds from the sale of western lands, the most common source of revenue for the early United States was import duties. Those were generally acceptable during the first several decades, because they involved voluntary purchases and were often seen, as Jefferson’s remarks show, as luxury taxes paid by the wealthy. Attempts to tax the fruits of labor, such as the Whiskey Tax of 1791, precipitated significant political opposition and a drawn-out period of unrest from 1791 to 1794. There were incidents of violence against federal tax collectors and the property of federal officials. That unrest, dubbed the Whiskey Rebellion, ended only after a show of military force by federalized militia, the arrest and trial of a handful of participants, and, eventually, the repeal of the tax.
A later tax on labor, the 1894 federal peacetime income tax, was struck down as unconstitutional by the Supreme Court in 1895 in Pollock v. Farmers’ Loan and Trust Co. It took another couple of decades and a constitutional amendment before a one percent tax on income above $3000, affecting only about three percent of the population of the United States, was enacted. Since then, the federal government has relied primarily on taxes on production and labor, such as excise taxes on products and income taxes, rather than on import duties and tariffs.
Another threat to the rights in property was expropriation and redistribution of land. Many Revolutionary War era state legislatures found it impossible to resist the lure of seizing property owned by British subjects and American Loyalists and reselling it to American Patriots, either settlers or speculators. But, in general, there probably was nothing that more viscerally frightened and repelled most Americans than redistribution of property. As noted earlier, many Americans reacted in shock to the alleged goal of Daniel Shays and his followers to force a redistribution of land. There was no less opposition to a peaceful redistribution of land through what were called “agrarian laws.” Hamilton, Washington, Adams, Madison, Jefferson, and John Taylor of Caroline County might view agrarian republicanism with lesser or greater degree of favor, but all rejected such interference with a person’s rights in property.
Even Taylor, the foremost American theorist and defender of agrarian republicanism, declared that redistributions of property were grotesque infringements of liberty. He noted that government was instituted primarily to protect private property, the “acquisitions of private people, which no law can transfer to other private people.” On a curious note, Taylor assured his readers that, as a practical matter, it would be futile to support such laws, because the political system was rigged against them: “My fellow laborers, mechanical or agricultural, let us never be deluded into an opinion, that a distribution of wealth by the government or by law, will advance our interest.” The mechanics and farmers may constitute the majority of nations, but “a minority administers governments and legislates.”
The judiciary also placed themselves firmly in categorical opposition to such laws, using both specific constitutional restrictions and more abstract political theory. A clear statement to that effect came from Justice Samuel Chase in 1798 in Calder v. Bull. In language similar to that of Taylor, Chase insisted that “a law that takes property from A. and gives it to B.” would “take away that security for personal liberty or private property for the protection whereof the government was established” and would be “contrary to the great first principles of the social compact.” Presumably, even an exercise of eminent domain through which government compensated the property owner for the land seized was unconstitutional if the land was transferred to another private person. For better or worse, that strictness was not always observed as states condemned land for private canal and turnpike operations. Not unexpectedly, given the breeziness with which rights in property are infringed today, the Supreme Court no longer sees forced transfers of property from one person to another as fundamentally objectionable, as long as the original owner is compensated, and the transfer achieves some vague public purpose.
In Vanhorne’s Lessee v. Dorrance, a federal circuit court case in 1795, Justice William Paterson, a leading figure at the Philadelphia Convention, struck down as an unconstitutional taking of property a Pennsylvania law that vested title to tracts of land after the land had previously been granted to another claimant. Using both the Constitution’s text and natural law reasoning Chief Justice John Marshall and Justice William Johnson wrote opinions in Fletcher v. Peck in 1810 striking down a similar Georgia law as a violation of vested rights in property. Johnson, a Jeffersonian republican, went so far as to announce that such laws went against a general principle which binds all legislatures, “the reason and nature of things; a principle which will impose laws even on the deity.” Setting aside theological disputation about the last part of that assertion, Johnson’s opinion recognized the fundamental nature of rights in property.
The final threat to property and the fruits of one’s labor in the early United States came in the form of laws which interfered with duly made contracts. State legislatures in the 1780s, responding to depressed economic conditions, repeatedly meddled in debtor-creditor relations with a plethora of laws designed to assist debtors. Most notorious were state laws making depreciated paper currency legal tender for the payment of debts. Neither state constitutional guarantees nor the frail central government created by Articles of Confederation proved able to halt these legislative abuses. State courts were simply unable to uphold the rights of creditors in the face of public pressure. “Americans,” Forrest McDonald concluded, “were not as secure in their property rights between 1776 and 1787 as they had been during the Colonial period.”
When discussing the destructive influence of political factions in essay No. 10 of The Federalist, Madison described the types of pernicious laws that have resulted from factions gaining majority control of legislatures. He was obviously referring to the laws enacted through the tumultuous factional politics of the state governments of his time: “…a rage for paper money, for an abolition of debts, for an equal division of property, or for any other improper or wicked project, will be less apt to pervade the whole body of the Union than any particular member of it, in the same proportion as such a malady is more likely to taint a particular county or district, than an entire State.” Such laws, too, interfered with the legitimate expectations of people to have the fruits of their labor protected, because funds lent in good faith could be repaid in worthless scrip and contracts for goods and services performed in good faith could be undone on legislative whim. The Constitution sought to remedy this problem by prohibiting state laws which impaired the obligations of contract and frustrated rights vested under such contracts. Unfortunately, over the past century, the Supreme Court has effectively neutered that clause.
Justice Stephen Field, the most influential American judge of the latter part of the 19th century, put it succinctly in 1890 in an address on the occasion of the centenary of the Supreme Court: “It should never be forgotten that protection to property and persons cannot be separated. Where property is insecure the rights of persons are unsafe. Protection to the one goes with protection to the other; and there can be neither prosperity nor progress where either is uncertain.”
Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.
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Principle of Keeping the Fruits of One’s Own Labor
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 78: Principle of Keeping the Fruits of One’s Own Labor – Guest Essayist: Joerg Knipprath, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read By Constituting America Founder, Actress Janine Turner
“A just security to property is not afforded by that government, under which unequal taxes oppress one species of property and reward another species: where arbitrary taxes invade the domestic sanctuaries of the rich, and excessive taxes grind the faces of the poor; where the keenness and competitions of want are deemed an insufficient spur to labor, and taxes are again applied, by an unfeeling policy, as another spur; in violation of that sacred property, which Heaven, in decreeing man to earn his bread by the sweat of his brow, kindly reserved to him, in the small repose that could be spared from the supply of his necessities.” – Property, an essay by James Madison, March 29, 1792.
One of the fundamental philosophical tenets of American republicanism in the late 18th and the 19th century was the inviolability of rights in property. Influenced by the writings of John Locke on political theory, the definition of property extended not only to material property, but to the status of ownership over oneself. One had natural rights in one’s person. The exercise of one such right, labor, would lead to the acquisition of an estate in material property. As James Madison explained in essay No. 10 of The Federalist, there is a “diversity in the faculties of men, from which the rights of property originate…. The protection of these faculties is the first object of government.” It is these inherent characteristics of mind, body, and talents that government must protect, not handicap. “From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.”
Property in both senses, metaphysical and material, was the source of a person’s liberty. In the metaphysical sense, one’s property in oneself meant that one was not by nature the slave of another, and that, therefore, as a free person, one had certain rights of which one could not be deprived. In the material sense, a sufficient portion of property, especially of land, provided the independence that was necessary for the effective exercise of one’s liberty. Further, that independence from others’ control must exist broadly within the community to supply the civic virtue needed for republican self-government. Property as so understood was at the basis of human flourishing for the individual and the community. When Thomas Jefferson changed the last aspect of Locke’s formulation of natural rights from property to the pursuit of happiness in the Declaration of Independence, he did not change the fundamental point that property was critical to human happiness understood as individual flourishing within a political commonwealth governed by consent of its people.
Locke had posited that one’s labor, mixed with the land (or with other raw materials in the case of non-agricultural pursuits), created private property out of what God had given humans in common in nature. An estate, therefore, was a fruit of one’s labor, and government action to take or diminish one’s estate or to commandeer one’s labor was a violation of fundamental rights to property and liberty. A century after Locke, Adam Smith made a similar point in 1776 in Wealth of Nations. “The property which every man has in his own labor,” Smith wrote, “as it is the original foundation of all other property, so it is the most sacred and inviolable. The patrimony of the poor man lies in the strength and dexterity of his own hands; and to hinder him from employing this strength and dexterity in what manner he thinks proper, without injury to his neighbor, is a plain violation of this most sacred property. It is a manifest encroachment upon the just liberty both of the workman and of those who might be disposed to employ him. As it hinders the one from working at what he thinks proper, so it hinders the others from employing whom they think proper.”
Writing yet another century later, in 1872 in The Slaughterhouse Cases, the highly-respected Justice Joseph Bradley observed in a dissent from a Supreme Court decision to uphold a slaughterhouse monopoly, “Rights to life, liberty, and the pursuit of happiness are equivalent to the rights of life, liberty, and property. These are the fundamental rights which can only be taken away by due process of law, and which can only be interfered with, or the enjoyment of which can only be modified, by lawful regulations necessary or proper for the mutual good of all; and these rights, I contend, belong to the citizens of every free government.
“For the preservation, exercise, and enjoyment of these rights the individual citizen, as a necessity, must be left free to adopt such calling, profession, or trade as may seem to him most conducive to that end. Without this right, he cannot be a freeman. This right to choose one’s calling is an essential part of that liberty which it is the object of government to protect, and a calling, when chosen, is a man’s property and right. Liberty and property are not protected where these rights are arbitrarily assailed.”
The right to engage in labor of one’s choosing, and the right to retain the fruits thereof in the form of property, are central to one’s liberty, yet experience has shown that governments have threatened these rights repeatedly. Taxation, redistribution of property, especially of land, and abolition of debts have been the most potent threats to security in property. Taxes, notably those on land or its produce, were particularly suspect because they could deprive people of their most basic means of subsistence and status, while benefiting some favored politically powerful individual or group.
Sounding much like Plato in The Republic about the defects of democracy, John Adams identified the danger in his Defence of the Constitutions of Government of the United States. Although his posited facts appear odd considering his assurances elsewhere about the widespread distribution of property in New England, he argued, “[A] great majority of every nation is wholly destitute of property, except a small quantity of clothes, and a few trifles of other movables. Would Mr. Nedham be responsible that, if all were to be decided by a vote of the majority, the eight or nine millions who have no property, would not think of usurping over the rights of the one or two millions who have? Property is surely a right of mankind as really as liberty. Perhaps, at first, prejudice, habit, shame or fear, principle or religion, would restrain the poor from attacking the rich, and the idle from usurping on the industrious; but the time would not be long before courage and enterprise would come, and pretexts be invented by degrees, to countenance the majority in dividing all the property among them, or at least, in sharing it equally with its present possessors. Debts would be abolished first; taxes laid heavy on the rich, and not at all on the others; and at last a downright equal division of every thing be demanded, and voted. What would be the consequence of this? The idle, the vicious, the intemperate, would rush into the utmost extravagance of debauchery, sell and spend all their share, and then demand a new division of those who purchased from them. The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If ‘Thou shalt not covet,’ and ‘Thou shalt not steal,’ were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”
The long struggles over taxation between king and barons in Magna Charta, and subsequently between king and Parliament, had ended with Parliament’s power over the purse confirmed in the settlement offering the throne to William and Mary after the Glorious Revolution of 1688. Taxes were said to be a “gift” of property from the people to the king. Therefore, the king could not simply impose taxes, any more than a thief could help himself to one’s property or command one’s labor. However, under the class-based theory of virtual representation which held that all Englishmen other than the high nobility were represented in the House of Commons, that body had the authority to vote in favor of granting the king such a gift. The American colonists had a different theory of representative government, one based on geographic communities whose residents selected “their” representatives. As such, they rejected taxes levied by vote of the House of Commons in which, the colonials averred, they were not represented. That basic difference over the nature of representation led to the revolutionary slogan “no taxation without representation.” But even domestically, contests between royal governors and colonial legislatures over taxation were endemic.
Americans’ distrust of taxation continued after independence. The power to tax was still the power to destroy, even if it was exercised by a legislative majority elected by themselves. The problem existed at the state level and, if anything, was considered even more of a threat at the national level. The Articles of Confederation tried to strike a balance between taxes and liberty by giving Congress only the power to levy requisitions on the states, not to impose taxes directly on people. When the Constitution of 1787 gave Congress a broad taxing power, it produced significant resistance. One concern was that the Congress might impose a level of taxation that destroyed the liberty of persons by impoverishing them. Another was that the power threatened the vitality of the states.
The example of Shays’s Rebellion in Massachusetts in 1786 provided a concrete lesson about the former concern. The state legislature, acting on the prompting of Governor John Hancock, had voted expensive programs of repaying the state’s war debts at face value, even though the state’s notes had depreciated significantly in value. This benefited wealthy speculators in those notes. It also placed a severe burden on the state’s finances. However, Hancock refused to collect the taxes the legislature had voted to cover the costs. When he left office, the state’s treasury was in dire straits, and that politically unpleasant task fell to his successor, James Bowdoin. The taxes heavily burdened farmers in the western part of the state. The resulting discontent produced statements of grievances, interference with court proceedings, and a loosely organized armed force of debtor farmers eventually defeated by a volunteer army recruited in the state’s eastern counties.
Shays’s Rebellion frightened many Americans. They were alarmed by exaggerated accounts of Shays’s “army,” especially the report written to George Washington by Henry Knox, the superintendent of war under the Confederation. Washington believed Knox’s wild claims, including that Shays intended to march south and to seize and redistribute land. A letter from Abigail Adams to Thomas Jefferson noted that some Shaysites called for an equal distribution of property. Another letter, from James Madison to his father, asserted that “an abolition of debts, public and private, and a new division of property are strongly suspected to be in contemplation.” The tumult gave strong impetus to the convening of the constitutional convention in Philadelphia.
Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.
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Principle of a Free Press
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Patrick Garry Essay 84: Principle of a Free Press – Guest Essayist: Patrick M. Garry, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Patrick GarryEssay Read By Constituting America Founder, Actress Janine Turner
“Without Freedom of Thought, there can be no such Thing as Wisdom; and no such Thing as publick Liberty, without Freedom of Speech” – Part of an article by Benjamin Franklin, under the pseudonym Silence Dogood, a name he used due to threats against free speech. Franklin wrote it on freedom of speech and of the press; it published in a newspaper: No. 8 on July 9, 1722, The New-England Courant.
The principle of a free press is enshrined in the First Amendment of the United States Constitution. This principle has shaped and characterized American society and political governance from the nation’s earliest beginnings. Americans of every generation have valued a free and independent press, protected from the controlling or censuring arm of government.
This strong American cherishing of a free press has its roots in the colonial period, during the lead-up to the movement for independence from Britain. As the colonists learned, such a movement would not have been successful without a free and vibrant press.
One of the political catalysts of the American Revolution was the effort of the British to subdue the popular press in colonial America. This attempt was twofold. The first was an accelerated use of the law of seditious libel. The second was the Stamp Act, under which a prohibitive tax was placed on the paper used by the presses. This tax threatened to force the inexpensive press out of circulation and thus to suppress colonial discussion of politics.
The Stamp Act passed by Parliament in 1765 proposed a host of unprecedented and, in the American view, unconstitutional burdens. The passage of the Stamp Act hurt printers by threatening an increase in their costs and by jeopardizing their subscription base, since many subscribers refused to even indirectly pay a tax to the Crown.
Following passage of the Act, the colonial newspaper documented the public’s mounting opposition to the Act. Indeed, the outburst of popular resentment against the Act was so great that it led to the start-up of four new newspapers. Printers took an active role in the debate and developed a close alliance with political groups such as the Sons of Liberty. These political groups also founded new newspapers whenever they felt it desirable.
As the Stamp Act became effective, the majority of colonial newspapers became inspired by the wave of public opposition to the Act, and in one manner or another opposed the Act. By the time the Stamp Act was repealed, newspaper printers had acquired a heightened sense of their role in the community. The principle of “liberty of the press” had become a battle cry against the Stamp Act. The campaign against the Stamp Act also increased the opinion role of newspapers. No longer mere transmitters of information, they had become engines of opinion.
The newspapers carried forward the role they had played in the Stamp Act crisis to the protest against the Townshend Acts. Even more so than the Stamp Act, the Townsend Acts sparked an intense battle of opinion waged in the newspapers. This battle was fought between the patriot press and the government press, revealing the degree of public support behind each cause. The spirited campaign fought by the patriot newspapers against the Townshend Acts contributed to the eventual repeal of nearly all of the duties.
During the controversy surrounding the Stamp Act and Townshend Acts, printers were greatly swayed by the opinions of their readers. The more radical the readers, the bolder the printers. The content of colonial newspapers closely mirrored the particular issues that were important to the local constituencies. The press in effect became intertwined with local partisan battles, and newspapers often started up just as a political issue rose in importance.
During the interim period between the Townshend Acts and the Revolutionary War, newspapers continued to exist and to flourish, keeping open the channels of public discussion, which would become valuable in the crucial years ahead.
In 1773 when Parliament passed the Tea Act, a roar of protest once more emerged from the newspapers. The most aggressive editors were those who had participated in the protests in the 1760s. Again, the public mood thrusted the newspapers into the midst of the protest.
The American press played a major role in opposing British rule. The distinct gain in prestige made by the press during the revolutionary period began with the Stamp Act, the repeal of which was recognized as the result of a united colonial opposition made possible by the important role played by the newspapers of the day.
In addition to its political consequences, the newspaper offensive unleashed by the Stamp Act made several permanent impacts on American journalism. First, the influence of the press was enormously enhanced, instilling a newspaper-reading habit that would characterize many succeeding generations. In 1800, for instance, a magazine declared the United States to have become a nation of newspaper readers, and foreign observers noted in comparison with Europe the prevalence of newspapers in America.
After achieving independence from Britain and setting out to form a new constitutional republic in the United States, the Framers knew and treasured the role that a free press had played in shaping a new nation. This principle would receive not only constitutional protection in the Bill of Rights but would also command widespread popular support throughout America for centuries to come.
Patrick M. Garry is professor of law at the University of South Dakota. He is 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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Principle of Free Market Trade, Industry, Innovation and Competition
90 in 90 2023, Stephen Tootle, 6. Guest Constitutional Scholar Essayists, Blog Essay 77: Principle of Free Market Trade, Industry, Innovation and Competition – Guest Essayist: Stephen Tootle, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Stephen Tootle, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
“That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties, and free choice of their occupations, which not only constitute their property in the general sense of the word; but are the means of acquiring property strictly so called.” – Property, an essay by James Madison, March 29, 1792
Americans are exceedingly fortunate in some regards. The founding generation that theorized about creating a government did not evaporate into thin air or disappear into classrooms after publishing a few papers or demonstrating for change. Instead, most of them engaged in practical politics. They were around to find the limits and implications of their theories. James Madison, as the primary author of the United States Constitution could have retired and lived the life of a hermit and still made it into our history books. He did not do that.
By the Spring of 1792 Madison was a congressman from Virginia, engaged in the messy horse-trading of practical politics. He was also actively engaged in describing how the underlying principles of our government interacted with the real world. He watched the beginnings of the ideological and partisan divisions between people who shared all of the same fundamental principles. He saw regions compete with regions and nations serve as both positive and negative examples for America. In that spirit, he wrote an essay on the subject of property published March 29, 1792.
Madison conceived of property rights in a way that was much broader, deeper, and more expansive than the mere protection of wealth or land. Understanding his conception is central to understanding the very nature of the American government. Unlike some later thinkers, Madison and the Founders did not consider the rights of property to be a “thing” that was separate, apart, held only socially, or distinct from all other rights of an individual. While that might seem like an inconsequential bit of political theory, the practical implications of this formulation were enormous and foundational to the idea that human beings could live prosperous lives at peace with one another.
If property rights were natural to all other rights, things like free market trade, industry, innovation, and competition were the consequences of the deeper foundational principles of the Founders—not their purpose. To put it another way, Madison and the Founders did not envision liberty in order to justify the free market or property rights; Madison merely recognized the implications of property rights in the real world. To pretend that our system of government could function without the protection of individual property rights would have seemed oxymoronic and absurd to the framers of our political institutions.
In the American system and as outlined by Madison, the same set of individual rights have both a private and public function. He understood that every right an individual holds has some manifestation in the physical world. Understanding that simple fact led him to a conclusion that was inescapable, profound, and should be obvious: Every right lived and breathed in its relationship to the rights of property. No just government could sever property rights from any of the natural rights held by any individual. This was not enough.
Because individuals exercise the rights of property in a social context, they depend on a reciprocal, peaceful recognition within a political system. A just system protected the rights of every individual. As Madison wrote, property, “…embraces every thing to which a many may attach a value and have a right, and which leaves to every one else the like advantage.”[1] Any right you have and anything you find valuable is defined as property. Because everyone has rights, everyone has property worthy of protection.
Property then, was more than simply money, wealth, land, or objects. Madison understood that one could not claim to have free opinions without being free from violence when communicating those ideas. One could not freely express religious belief and practice when personal safety and property were threatened. The freedom to choose where to work, what to work for, and what to do with the product of one’s work were inseparable. All were rights. All were inseparable from property.
To Madison, any pretended choice between the rights of property and any other right was a false dichotomy. The rights of property were inextricably linked to every other right and should be recognized and balanced in a peaceful constitutional order. As he concluded, “…a man is said to have a right to his property, he may be equally said to have a property in his rights.”[2] Protecting property rights – in this expansive understanding of property – was the very purpose of just government. There could be no other definition of justice beyond every individual peacefully having what they deserved to have while secure in their peaceful possession of all liberties. Because of this, Madison believed government ought only to interfere with property rights sparingly.
Any government that violated religious liberty with tests, taxes, or an imposed hierarchy would not be just. Any government that failed to enforce contract law, engaged in arbitrary property seizures, or allowed one class of people to oppress another would be violating the rights of conscience, which Madison called “the most sacred of all property.”[3] But he had a special ire for the regulated markets of the British mercantilist system and worried that America might follow their example.
Government itself could easily fall out of balance by imposing, “restrictions, exemptions, and monopolies” that would interfere with property rights.[4] Property was not secure when government encouraged one form of work or manufacturing over another. Such encouragement would be similar to an unjust tax designed to reward friends and punish enemies. He deplored the use of taxation as social policy and recognized the temptation to, “invade the domestic sanctuaries of the rich,” or taxation that would, “grind the faces of the poor.”[5] He understood that human beings always sought advantages for themselves and would try to use taxation to gain those advantages.
Leaders needed to be scrupulous in dealing with all forms of property–including the property that individuals hold in ambitions, religion, opinions, and labors. None should be taken from an owner without full compensation. If the United States wanted to maintain its legitimacy and serve as an example to the world, its government had to “equally respect the rights of property, and the property in rights….”[6] There could be no substitute for this formulation.
Human beings are infinitely complex. Part of Madison’s genius was his understanding of the practical application of rights based on how imperfect human beings lived in an imperfect world. Instead of theorizing about how to turn human beings into angels, Madison understood the complexity of human experiences and the relationship between the internal and the external world. He knew that politics can do many things, but it cannot do everything.
Of course Madison and the Founders believed in the principles of free market trade, industry, innovation, and competition. Every competition requires the peaceful execution of its rules or it could not be said to be a competition. The violent suppression of innovation or use of violence in directing labor was anathema to anything resembling a free life. If all of our rights have a manifestation in property, individuals must be able to buy, sell, withhold, cherish, and labor for property – broadly understood – as they see fit. To say that our Founders believed in a “free market” is to state nothing so plain as the Founders believed that people could live peaceful lives. One could not protect any fundamental rights without protecting the “property in rights.”[7] There is no other way.
Stephen Tootle is a Professor of History at the College of the Sequoias in Visalia, California and Honored Visiting Graduate Faculty in History and Government at Ashland University in Ashland, Ohio. His writings have appeared in National Review, Presidential Studies Quarterly, The Claremont Review of Books, The Journal of the Gilded Age and Progressive Era, and other publications. He gives talks on politics and political history for the Ashbrook Center and the Bill of Rights Institute and is the co-host of The Paper Trail Podcast, a weekly public affairs podcast published by the Sun-Gazette.
[1] https://teachingamericanhistory.org/document/property/
[2] Ibid.
[3] Ibid.
[4] Ibid.
[5] Ibid.
[6] Ibid.
[7] Ibid.
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Principle of Private Property Ownership To Sustain Liberty, Encourage Commerce and Independence
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 72: Principle of Private Property Ownership To Sustain Liberty, Encourage Commerce and Independence – Guest Essayist: Tony Williams, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsEssay Read By Constituting America Founder, Actress Janine Turner
In the early 1790s, Representative James Madison was a skilled politician, newspaper polemicist, and member of the Jeffersonian Republican Party. In all of these roles, Madison demonstrated increasing concerns about the centralizing tendencies occurring in the first of the American presidencies which began with the Washington administration. He was especially concerned about Secretary of Treasury Alexander Hamilton’s financial policies regarding the public credit and a national bank.
In late 1791 and throughout 1792, Madison penned a series of eighteen newspaper essays on various topics of government, law, and economics. He wrote them to reflect on various topics related to self-government, but his main purpose was to expose how Federalist Party policies stretched the boundaries of the United States Constitution by expanding the power of the national government.
On March 29, 1792, Madison published one of the essays entitled “Property.” In the essay, he leaned in on the principles of natural rights, the purposes of government, and limited government. These principles were important to Madison because they protected individual liberty. His ideas were heavily influenced by the ideas of Enlightenment philosopher, John Locke.
In his Second Treatise of Government (1689), Locke wrote that all humans are in a state of nature, free and equal in their natural rights. For Locke, property was the most important natural right, and it included possessions but also most significantly a property in one’s person, labor, and rights. He wrote, “Yet every man has a property in his own person…The labour of his body, and the work of his hands.”
Government was established by common consent for the purpose of protecting a person’s property rights. He wrote, “The great and chief end, therefore, of men’s uniting into commonwealths, and putting themselves under government, is the preservation of their property.”
These Lockean ideas fundamentally shaped the Declaration of Independence in 1776. The Declaration lays down natural rights as the basis of self-government. It asserts that “all men are created equal,” and that they were “endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty, and the pursuit of Happiness.” The Declaration also states the fundamental purpose of government is to protect rights. “That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
In 1792, these ideas continued to shape Madison’s thinking about American constitutionalism when he penned his “Property” essay. Locke clearly helped to influence Madison’s understanding of property as he argued that it included physical property, a person’s opinions, the right to have safety of one’s person, and an individual’s religious liberty. In fact, he described religious conscience as the “most sacred of all property.”
Importantly, while Madison had all of these conceptions of property, he thought that individuals had an inalienable property in their rights. “In a word, as a man is said to have a right to his property, he may be equally said to have a property in his rights,” he wrote.
Like Locke and the Declaration of Independence, Madison believes that government exists to protect inalienable rights especially property. He explains that a just government is one that protects rights, and, conversely, an unjust government violates those rights or fails to protect them adequately. Therefore, he attacks arbitrary government, which is the definition of tyranny. He writes,
Government is instituted to protect property of every sort; as well that which lies in the various rights of individuals, as that which the term particularly expresses. This being the end of government, that alone is a just government, which impartially secures to every man, whatever is his own…That is not a just government, nor is property secure under it, where arbitrary restrictions, exemptions, and monopolies deny to part of its citizens that free use of their faculties.
Madison continued to oppose many of the policies of the Washington and Adams administrations. He served as vice-president under Thomas Jefferson and helped to usher in the “Revolution of 1800,” in which they believed they restored republican limitations on the national government. Madison was elected president in 1808 and served two terms. While his administration reflected his republican ideals from his “Property” essay, he did eventually change his mind on certain centralizing policies he opposed in the early 1790s including signing the Second National Bank into law in 1816. Still, James Madison believed in a natural rights republic and constitutionally limited government throughout his entire life.
The Founders applied the principle of limited government in the Constitution and early republic. The national government had no authority to tax without consent or to take property without consent or compensation. The First Amendment prevented a national establishment of religion and protected religious liberty. George Washington set the great example of limited republican government when resigned from the presidency after two terms.
Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.
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Principle of Making Personal Contracts
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, James C. Clinger Essay 76: Principle of Making Personal Contracts – Guest Essayist: James C. Clinger, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, James C. ClingerEssay Read By Constituting America Founder, Actress Janine Turner
Contracts are the promises that are made individually or collectively that are presumed to be legally enforceable. They are normally the product of negotiation and deliberation among parties regarding the mutual obligations that they accept voluntarily.[1] Not every agreement is a contract, and not every promise is legally enforceable, but contracts have become an essential means by which individuals can organize themselves and carry out personal and professional interactions, particularly with persons or entities with whom they have no personal or familial connection. The ability to make contracts, and the capacity and willingness for a neutral arbiter to guarantee that contracts will be enforced, became one of the critical developments that made long-term and long distance trade relations possible.[2] Contracts also became a building block of the modern corporation, which is often described today as a “nexus of contracts.”[3]
The freedom to make contracts and the confidence that contracts will be enforced cannot be taken for granted. Prior to the United States Constitutional Convention of 1787, many of the original thirteen states were actively undermining the enforcement of contracts among citizens. In most cases, the contracts that were threatened by state actions were concerned with debts. State legislatures enacted a number of laws which prevented creditors from collecting debts in the time frame stipulated in contracts. For this reason, many creditors looked to the federal government to curb state actions which threatened the execution of contracts. Congress, under the Articles of Confederation, provided in the Northwest Ordinance that in that soon to be developed territory stipulated “no law ought ever to be made, or have force in the said territory, that shall in any manner whatever interfere with, or affect private contracts or engagements, bona fide and without fraud previously formed.” [4] Notably the clause pertained only to “private” contracts that were already in existence.
At the Constitutional Convention, a stand-alone contracts clause was debated and ultimately rejected, but the Committee on Style inserted a general form of the clause within a section dealing with limits on state power, which the convention did approve.[5] The final language in Article 1, Section 10, reads as follows: “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”[6] The clause is sandwiched between other provisions that limit states’ ability to engage in diplomacy, affect international trade, or carry out monetary policy. There is no language limiting the clause’s application to private contracts, nor is the clause clearly limited to contracts that were “previously formed,” although the courts quickly established that state law could regulate future behavior that might otherwise be the subject of a contract. It should also be noted that the contracts clause does not forbid the federal government from “impairing the obligation of contracts.” In fact, the federal government may modify debt contracts very dramatically through bankruptcy laws, which were authorized explicitly by the bankruptcy clause in Article I, Section 8 of the United States Constitution.
The clause was applied in some early cases of the Supreme Court. In 1810, the Court ruled in Fletcher v. Peck that the state of Georgia could not revoke a previously issued land grant to private parties. This ruling established that the contract clause applied to both public and private contracts.[7] A few years later, the Court more clearly asserted the constitutional protection of contracting in the case of Dartmouth College v. Woodward. In this ruling, the Court held that a charter establishing and organizing a private academic institution could not be fundamentally changed by an enactment of the New Hampshire legislature.[8] This decision was not only significant because it defended the right of private parties to have their contracts respected, but also because it recognized that private associations and incorporated entities could be at least somewhat insulated from state government control.
In later cases, the Court made clear that the right to engage in personal contracts is not absolute. In Ogden v. Saunders, the Court ruled that the states could make laws affecting contracts as long as those laws had prospective effect.[9] Later, in Stone v. Mississippi, the justices ruled that the contract clause did not prevent states from exercising their police powers to protect health and morals.[10] This ruling was echoed in a twentieth century case, Home Building & Loan Association v. Blaisdell, in which the Court expanded that exception to include advancing public welfare through a redistribution of resources.[11] In recent years, some legal scholars have said that the federal Constitution’s contract clause has been eviscerated because the courts have ruled that its applicability is limited by so many public policy related exceptions.[12] Nevertheless, it should be noted that many state constitutions contain contract impairment laws which are still applied, often in legal challenges to legislative changes in public employee pension fund benefits.[13]
The freedom to contract and the expectation that contractual obligations will be enforced has been critical to American economic life since its founding. Courts have long been involved in the settling of contractual disputes, sometimes invoking the contract clause, but more often using common law principles or provisions of the Uniform Commercial Code, which every state has adopted. But the implications of the freedom to contract is not limited to economic matters. Contracts are involved in many forms of association, including political organizations and civic and religious entities. Without protection for these contracts, these associations could not function effectively.
James C. Clinger, Ph.D., is an emeritus professor of political science at Murray State University. His teaching and research has focused on state and local government, public administration, regulatory policy, and political economy. His forthcoming co-edited book is entitled Local Government Administration in Small Town America.
[1] Cornell Law School. Legal Information Institute. https://www.law.cornell.edu/wex/contract Accessed August 12, 2023. On the view that contracts should be seen essentially as promises, see Fried, Charles. Contract as Promise: A Theory of Contracting Obligation. Cambridge, Mass.: Harvard University Press, 1981.
[2] Wallis, John Joseph. “Institutions, Organizations, Impersonality, and Interests: The Dynamics of Institutions.” Journal of Economic Behavior & Organization 79 (1-2)
[3] Jensen, Michael C., and William H. Meckling. 1976. “Theory of the Firm: Managerial Behavior, Agency Costs and Ownership Structure.” Journal of Financial Economics 3 (4): 305–60.
[4] Northwest Ordinance. Article II, Clause 5. See also McConnell, Michael W. “Contract Rights and Property Rights: A Case Study in the Relationship between Individual Liberties and Constitutional Structure.” California Law Review 76, no. 2 (1988): 267–95.
[5] Douglas W. Kmiec and John O. McGinnis, “The Contract Clause: A Return to the Original Understanding, 14 Hastings Const. Law Quarterly 5 (1987): 525-560.
[6] United States Constitution, Article I, Section 10
[7] Fletcher v. Peck. 10 US 87 (1810). See also Hobson, Charles F. 2017. “The Yazoo Lands Sale Case: Fletcher v. Peck (1810).” Journal of Supreme Court History 42 (3): 239–55.
[8] 17 US 518. See also O’Kelley, C. R. T. (2021). What Was the Dartmouth College Case Really About? Vanderbilt Law Review, 74(6), 1645–1725.
[9] 25 US 518 (1827).
[10] 101 US 814 (1879).
[11] 290 US 398 (1934).
[12] Ely, James W., Jr. “Whatever Happened to the Contract Clause?” Charleston Law Review 4 (2010): 371–94.
[13] Hull, Bradley. 2015. “State Contract Impairment Clauses and the Validity of Chapter 9 Authorization.” Emory Bankruptcy Developments Journal 32 (1): 87–122.
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Principle of Money With Intrinsic Value and Standards of Weights and Measures, Printing Money
Robert E. Wright, 90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog Essay 75: Principle of Money With Intrinsic Value and Standards of Weights and Measures, Printing Money – Guest Essayist: Robert E. Wright, Robert E. Wright, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
“And since a Plentiful Currency will be so great a Cause of advancing this Province in Trade and Riches…I cannot think it the Interest of England to oppose’ us in making as great a Sum of Paper Money here, as we, who are the best Judges of our own Necessities, find convenient. And if I were not sensible that the Gentlemen of Trade in England, to whom we have already parted with our Silver and Gold, are misinformed of our Circumstances, and therefore endeavour to have our Currency stinted to what it now is, I should think the Government at Home had some Reasons for discouraging and impoverishing this Province, which we are not acquainted with…” – Benjamin Franklin, A Modest Enquiry into the Nature and Necessity of Paper Currency, Benjamin Franklin, April 3, 1729.
For over half a century, the colonists living in mainland British North America sought a monetary system like that described by Benjamin Franklin in his 1729 Modest Enquiry into the Nature and Necessity of Paper Currency. In other words, they wanted their own “inside” money composed of paper “bills of credit” (fiat notes like today’s Federal Reserve notes) useful only in local trade and an “outside” money composed of full-bodied gold and silver coins (referred to collectively as specie) useful in international trade.
All the colonies eventually emitted fiat paper bills of credit but only the Middle Colonies of New York, New Jersey, Pennsylvania, Maryland, and Virginia managed to do so without causing massive inflation, which the colonists perceived as depreciation of the bills of credit in terms of the “outside” or “real” money, specie.
As with most things in life, too much of a good thing can lead to bad outcomes. The colonists wanted “inside” money because each unit of it (confusingly, for us, called “pounds”) they emitted into circulation allowed the same amount of gold or silver to be used to purchase goods abroad. That helped the colony’s economy but only until all the specie had been exported. The effect of issuing more bills of credit after that point was to make each unit less valuable domestically – price inflation or currency depreciation depending on your perspective.
The northernmost and southernmost colonies greatly exceeded that break-even point because they found it easier to finance their many wars against the French, Spanish, and their American Indian allies by printing more inside money than by raising taxes. Double-digit inflation ensued, which injured the interests of creditors, the rich people who lent money. That is because the purchasing power of the depreciated money they were repaid with, even with single-digit interest paid in addition, was less than they expected.
Those rich lenders had the ear of policymakers in London, who in 1764 prohibited the colonists, even those in the Middle Colonies, from emitting any more bills of credit. This may have merely miffed the colonists had the restriction not taken place in the midst of a postwar economic downturn and a period of toughened trade restrictions that made it difficult for the colonists to trade enough with the right partners abroad to maintain sufficient amounts of specie in domestic circulation. Instead of inflation, the colonists suffered from massive deflation.
As a result, foreign and domestic trade decreased markedly, as did real estate prices. Interest rates increased on mortgages, when they could be had at all, because money was in such limited supply. Money matters became so desperate that squirrel scalp bounties began to circulate as cash in Bucks County, Pennsylvania and newspapers published odes to coins that colonists rarely saw in circulation anymore.
By 1765, borrowers began to default and lose all their property at sheriff’s sales. Many found themselves still owing money even after all their assets had been sold at low prices and ended up in debtors’ prison, where some died. The colonists pleaded for relief but instead the “Mother” Country implemented the Stamp Act, which imposed new taxes and threatened to denude the colonists of all their remaining specie.
The colonists successfully protested the Stamp Act but in the process initiated a series of increasingly violent conflicts that ended with the Declaration of Independence and Revolutionary War. The Americans funded much of the war effort with a new inside money called Continentals, issued far too many, and saw them depreciate in value, at first slowly but later essentially to zero. No longer constrained by British trade policies and with help from French infusions, specie again became the predominate form of money in America.
Yet Franklin and younger financially savvy policymakers, like Robert Morris, Thomas Willing, and Alexander Hamilton, knew that inside money could help to stimulate the economy, so long as it did not displace all of the specie once again. So they created new institutions, commercial banks, that issued two forms of inside money, deposits and notes, convertible on demand into a fixed amount of specie.
When the new Constitution was framed, the financiers managed to ban state governments from issuing fiat money but were silent about the new federal government’s power to issue it. For over a century, it did so only during major wars and afterwards withdrew it from circulation via taxes, as the Middle Colonies had done.
Before the Federal Reserve became operational in 1914, most money in America took the form of bearer or “cash” instruments like banknotes and specie coins, supplemented by money of account in the form of bank deposits transferable by check. Deposits could be tracked but the government rarely tried to access private bank records because of strong customs concerning confidentiality. Notes and specie provided anonymity and hence even stronger privacy protections.
From its inception, America defined its dollar in terms of specie, eventually settling, as most other nations did, on gold alone. Dollar denominated banknotes and deposits were not legal tender but convertible into legal tender coins on demand. They circulated because they were more convenient than coins but always could be exchanged for them.
Retail convertibility meant that international trade, not policymakers, determined America’s money supply. Gold flowed in when exports exceeded imports and out when imports outstripped exports. As explained by Scottish Enlightenment thinker David Hume and well understood by policymakers like Hamilton, the gold flows automatically adjusted the domestic money supply and interest rates towards more balanced international trade and long-term price stability.
During the New Deal of the 1930s, however, the nature of money changed dramatically in America, starting a process that culminated in the 1970s with the nation’s monetary system returning to its Revolutionary War roots, or in other words a fiat inside money delinked from specie and of constantly declining value.
Some dispute the Constitutionality of the current monetary regime, which simultaneously greatly diminished the privacy of bank accounts. A planned central bank digital currency (CBDC) threatens to end anonymous cash transactions entirely and wipe away the last legal vestiges of transaction privacy. Benjamin Franklin and the other Founders and Framers would not approve. Instead, they would urge moving back to the retail specie standard that the nation enjoined from its inception until the New Deal.
It will be up to the American people to push for a return to Constitutional money, though, because politicians dislike the constraints that come with linking the dollar to gold, or anything else, like Bitcoin, in relatively fixed supply. Unlike the statesmen of the founding generations, partisan policymakers today want to borrow and spend so they can appear to help some people without immediately increasing taxes on others. In the process, though, they run huge deficits that have compounded over the last few decades into a massive national debt that would be impossible with a gold-linked dollar.
Robert E. Wright is a Senior Research Fellow at the American Institute for Economic Research. He is the (co)author or (co)editor of over two dozen major books, book series, and edited collections, including AIER’s The Best of Thomas Paine (2021) and Financial Exclusion (2019). He has also (co)authored numerous articles for important journals, including the American Economic Review, Business History Review, Independent Review, Journal of Private Enterprise, Review of Finance, and Southern Economic Review. Robert has taught business, economics, and policy courses at Augustana University, NYU’s Stern School of Business, Temple University, the University of Virginia, and elsewhere since taking his Ph.D. in History from SUNY Buffalo in 1997.
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Principle of Freedom of Speech in a Marketplace of Ideas
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Patrick Garry Essay 81: Principle of Freedom of Speech in a Marketplace of Ideas – Guest Essayist: Patrick M. Garry, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Patrick GarryEssay Read By Constituting America Founder, Actress Janine Turner
The phrase marketplace of ideas has for more than a century been used to describe the nature and purpose of the First Amendment’s free speech protection. This phrase was famously articulated by Justice Oliver Wendell Holmes, Jr. in his dissenting opinion in the U.S. Supreme Court case of Abrams v. United States.
The issue in Abrams was whether the First Amendment protected Jacob Abrams from prosecution under the Espionage Act for distributing leaflets criticizing the dispatch of American troops to Russia and calling for a general strike in the U.S. The Supreme Court upheld Abrams’ conviction, ruling that his behavior posed a “clear and present danger” to the national security interests of the United States. Justice Holmes, however, disagreed. In a dissent that would later cast him as a defender of free speech and the First Amendment, Holmes wrote that the “best test of truth” of particular ideas is not the approval of government but the power of that speech “to get itself accepted in the competition of the market.”
Just because speech might be problematic or even contrary to government policy, it should not be prohibited by law, according to Holmes. Instead, the speech’s ability to gain approval in the social marketplace of ideas should determine its worth and staying power, Holmes argued. Only through the open competition of free and unhindered speech can society discover the truth necessary to govern itself. Since the people in a democratic society are the ultimate arbiters of social truth, there must exist a means by which the public can learn and acquire truth. As Justice Holmes recognized, and as courts have subsequently accepted, the best and perhaps only means to acquire truth is through the free exchange of ideas.
It would be nearly a half-century before the Supreme Court would accept the theory put forth by Justice Holmes in his 1919 Abrams dissent. Courts would come to value free speech as both a social and constitutional goal, and government restrictions on speech would be struck down as unconstitutional constraints on the marketplace of ideas. The constitutional protections of speech would not hinge on the government’s evaluation of the value or desirability of the speech.
The marketplace metaphor values free speech because only through open expression can society ever arrive at the social truths necessary for self-government. Consequently, to value truth is to value free speech; for without free speech, there can be no truth.
The enduring legacy of Holmes’ marketplace of ideas metaphor lay in its broadening of the justification for free speech. Prior to Holmes’ Abrams dissent, speech was looked upon as strictly an individual value. Thus, the only justification for protecting speech was the individual interest in being able to say whatever he or she wanted to say. At this point in America’s history, individual freedom to do or say whatever one felt like doing or saying was not highly valued. Social order and stability were far more valued, meaning the good of society prevailed over the interests of the individual. Survival and prosperity meant that individuals had to conform to societal norms.
Through his marketplace metaphor, Holmes demonstrated that free speech was not simply an individual value and that the reason for protecting free speech was not simply to grant unrestricted freedom to individuals. Instead, free speech was a necessary component to an effective and thriving society and nation. Without an open marketplace of ideas, the public could not come to a full and agreed upon appreciation of truth, which was the very foundation of self-government.
This marketplace principle can be violated today when unwanted speech is labeled “misinformation” and then censored.
Patrick M. Garry is professor of law at the University of South Dakota. He is 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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Principle of Individual Rights to Life, Liberty, and the Pursuit of One’s Own Happiness
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 73: Principle of Individual Rights to Life, Liberty, and the Pursuit of One’s Own Happiness – Guest Essayist: Gary Porter, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerEssay Read By Constituting America Founder, Actress Janine Turner
“Life, liberty, and the pursuit of happiness.” As most Americans will recognize, these are words from the Declaration of Independence.
Dr. Larry Arnn, President of Hillsdale College, in his beautiful and insightful book: The Founders’ Key: The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It,” writes: “The Founders understood [the Declaration and Constitution] to be connected, to supply together the principles and the details of government, to be a persuasive and durable unity.”[i]
Most Americans have never encountered Thomas Jefferson’s first draft of the Declaration[ii] and are not aware the Declaration went through significant “wordsmithing” on its path to approval on July 4, 1776. In his draft, I particularly prefer Jefferson’s more powerful: “We hold these truths to be sacred & undeniable” to the final, “self-evident.” On the other hand, other sentences in Jefferson’s draft clearly benefited from the collaboration of the Congress, even while Jefferson later complained his work had been “mangled.” The judgment of historian Carl Becker was that “Congress left the Declaration better than it found it.”[iii]
“Life, liberty, and the pursuit of happiness.” Here Jefferson is of course referring to the “certain unalienable Rights” we have been “endowed by [our] Creator.” These natural, unalienable rights derive from natural law. In a 1775 newspaper essay entitled “The Farmer Refuted,” Alexander Hamilton explains the relationship between natural law and natural rights this way:
“To grant that there is a supreme intelligence who rules the world and has established laws to regulate the actions of his creatures; and still to assert that man, in a state of nature, may be considered as perfectly free from all restraints of law and government, appears to a common understanding altogether irreconcilable. Good and wise men, in all ages, have embraced a very dissimilar theory. They have supposed that the deity, from the relations we stand in to himself and to each other, has constituted an eternal and immutable law, which is indispensably obligatory upon all mankind, prior to any human institution whatever. This is what is called the law of nature … Upon this law depend the natural rights of mankind … The Sacred Rights of Mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the Hand of the Divinity itself; and can never be erased or obscured by mortal power.” (Emphasis added)
Indispensably obligatory? Sir William Blackstone explains why:
“Man, considered as a creature, must necessarily be subject to the laws of his Creator, for he is entirely a dependent being. A being independent of any other, has no rule to pursue, but such as he prescribes to himself; but a state of dependence will inevitably oblige the inferior to take the will of him, on whom he depends, as the rule of his conduct; not indeed in every particular, but in all those points wherein his dependence consists. This principle, therefore, has more or less extent and effect, in proportion as the superiority of the one and the dependence of the other is greater or less, absolute or limited. And consequently, as man depends absolutely upon his Maker for everything, it is necessary that he should in all points conform to his Maker’s will.”[iv]
If there was one political principle which was ubiquitous during the founding period, it was the natural, unalienable rights of the colonists. Early Americans almost never missed an opportunity to proclaim them. As Thomas West argues, “the founders shared a ‘theoretically coherent understanding’ of politics rooted in natural rights philosophy.”[v]
While Jefferson directly lists only three unalienable rights, other rights, both individual and collective, are hidden in plain sight. These include:
We must also note that Jefferson’s use of “the pursuit of happiness” is unusual. The normal “trio” of essential rights was “Life, Liberty and Property.” We find property mentioned in most “rights” documents from the founding period: “pursuit of happiness” is an outlier. John Adams, in A Defence of the Constitutions of Government of the United States of America (1787), reminds us:
“Property is surely a right of mankind as really as liberty.…The moment the idea is admitted into society, that property is not as sacred as the laws of God, and that there is not a force of law and public justice to protect it, anarchy and tyranny commence. If “Thou shalt not covet,” and “Thou shalt not steal,” were not commandments of Heaven, they must be made inviolable precepts in every society, before it can be civilized or made free.”
But as Thomas Paine warns us:
“[P]roperty will ever be unequal …. Industry, superiority of talents, dexterity of management, extreme frugality, fortunate opportunities, or the opposite, or the means of those things, will ever produce that effect, without having recourse to the harsh, ill-sounding names of avarice and oppression; and besides this there are some men who, though they do not despise wealth, will not stoop to the drudgery or the means of acquiring it, nor will be troubled with it beyond their wants or their independence; while in others there is an avidity to obtain it by every means not punishable; it makes the sole business of their lives, and they follow it as a religion. All that is required with respect to property is to obtain it honestly, and not employ it criminally; but it is always criminally employed when it is made a criterion for exclusive rights.”[vi]
Is there a relationship between property and other rights? To James Madison there certainly was: “In its larger and juster meaning, it [property] embraces every thing to which a man may attach a value and have a right; and which leaves to everyone else the like advantage… In the latter sense, a man has a property in his opinions, and in the free communication of them. He has a property of peculiar value in his religious opinions, and in the professions and practice dictated by them. He has a property very dear to him in the safety and liberty of his person. He has an equal property in the free use of his faculties and free choice of the objects on which to employ them. In a word, as a man is said to have a right in his property, he may be equally said to have a property in his rights.”9 Madison then explains that “conscience is the most sacred of all property … more sacred than his castle.”[vii]
With “property” aside, the unalienable rights of Life and Liberty are relatively easy to understand, but a right to “pursue happiness” begs further explanation.
In his First Inaugural Address, George Washington explained: “There exists in the economy and course of nature, an indissoluble union between virtue and happiness.” Jefferson would agree. But perhaps we should first clarify what the pursuit of happiness did not mean. To America’s founders, it was not the pursuit of licentiousness, the pursuit of base pleasure or the pursuit of wealth for wealth’s sake. John Locke warns us: “mistake not imaginary for real happiness”[viii]
“[T]he “pursuit of happiness” as envisaged by [John Locke] and by Jefferson was not merely the pursuit of pleasure, property, or self-interest (although it includes all of these). It is also the freedom to be able to make decisions that result in the best life possible for a human being, which includes intellectual and moral effort. We would all do well to keep this in mind when we begin to discuss the “American” concept of happiness.”[ix]
Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.
[i] Larry Arnn, The Founders’ Key; The Divine and Natural Connection Between the Declaration and the Constitution and What We Risk by Losing It, Nashville, 2012, p.11.
[ii] https://founders.archives.gov/documents/Jefferson/01-01-02-0176-0004.
[iii] Carl Becker, Declaration of Independence, New York, 1922, p. 209.
[iv] Sir William Blackstone, Commentaries on the Laws of England, Section 2, Of the Nature of Laws in General, accessed at: https://www.laits.utexas.edu/poltheory/blackstone/cle.int.s02.html.
[v] Thomas West, The Political Theory of the American Founding: Natural Rights, Public Policy, and the Moral Conditions of Freedom, 2017.
[vi] Thomas Paine, Dissertation on First Principles of Government, 1795.
[vii] Kurland, Philip B. The Founders’ Constitution. Vol. 1. Chicago , IL: Univ. of Chicago Pr., 1987, p.598.
[viii] John Locke, An Essay Concerning Human Understanding, 1689, accessed at https://oll.libertyfund.org/title/locke-the-works-vol-1-an-essay-concerning-human-understanding-part-1.
[ix] Anonymous, accessed at https://www.pursuit-of-happiness.org/history-of-happiness/john-locke/.
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Principle of Individual Free Enterprise
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 74: Principle of Individual Free Enterprise – Guest Essayist: Andrew Langer, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerEssay Read By Constituting America Founder, Actress Janine Turner
The essence of the American Dream lies in the belief that every individual, irrespective of their background, has the opportunity to succeed based on their talents, abilities, and hard work. A central driver of this dream is the principle of individual free enterprise, a system where businesses are free from excessive government interference, and individuals have the right to use their resources to create, innovate, and grow.
The beauty of individual free enterprise is that it unleashes the inherent potential within each of us. It allows an individual with a great idea to take that concept, build upon it, and bring it to the marketplace. It encourages creativity, fosters competition, and drives innovation. In this arena, an entrepreneur’s vision can be actualized, and dreams can truly come alive.
The American Dream, therefore, can be aptly described as the Entrepreneur’s Dream. It is a dream that does not discriminate based on race, color, or creed, but instead extols the resilience, tenacity, and spirit of individuals who are willing to take risks and work hard to realize their visions. It is the dream of creating something that can not only change an individual’s life but potentially impact the world.
The cornerstone of the American dream, the pursuit of happiness, is intrinsically linked to the principles of private property rights and individual free enterprise. Rooted in the United States Constitution and the Bill of Rights, these tenets have been the lifeblood of our nation’s prosperity and ingenuity for centuries. Understanding the interconnectedness of these concepts and their critical importance is paramount to preserving the spirit of liberty that fuels American progress.
The right to “pursue happiness” is not merely a poetic phrase; it is the Declaration of Independence’s embodiment of the American dream, anchoring the pursuit of personal fulfillment and prosperity to the soul of the nation. Rooted in the Enlightenment philosophy of John Locke, the Founding Fathers believed that government’s primary role was to safeguard the natural rights of its citizens, granting them the autonomy to seek their own path to happiness. This novel notion freed the American people from the chains of monarchical rule and ushered in a new era of self-determination, where individuals were encouraged to chart their destinies with vigor and determination.
Yet, for this dream to thrive, we must create and maintain an environment conducive to entrepreneurial growth. An essential ingredient of this environment is a regulatory and policy framework that facilitates rather than hinders enterprise. The government’s role should be to provide a stable, predictable legal framework that protects property rights, upholds the rule of law, and maintains a level playing field.
The concept of individual free enterprise, which underpins the American economic system, complements the right to pursue happiness perfectly. Free enterprise embodies the principles of economic freedom, private property rights, and voluntary exchange. By unleashing the entrepreneurial spirit of the American people, it facilitates the pursuit of happiness on an unprecedented scale. Indeed, the Founding Fathers understood that the realizations of one’s dreams and aspirations were inextricably tied to the freedom to engage in commerce and create wealth.
At the core of the Constitution’s protection of private property rights is the Fifth Amendment, which states, “nor shall private property be taken for public use, without just compensation.” The Founding Fathers understood that private property is the bedrock of personal liberty and economic growth. It is a tangible manifestation of an individual’s labor, ingenuity, and ambition; it fuels motivation and contributes to societal development. Moreover, the right to private property extends beyond the mere possession of physical goods to encompass intellectual property, businesses, and even ideas.
Inextricably linked to the notion of private property rights is the concept of individual free enterprise. This principle is the foundation upon which America’s economic success has been built. Free enterprise allows individuals to use their private property—whether it be their labor, capital, or ideas—to create value, compete in the marketplace, and achieve their own version of the American dream.
These concepts are not separate entities, but rather two sides of the same coin, each strengthening and reinforcing the other. The security of private property rights fosters an environment conducive to free enterprise, where individuals are more inclined to take risks, innovate, and invest, knowing that their efforts and resources are safeguarded. Similarly, free enterprise, through its production of wealth and opportunities, allows for the further accumulation and managing of private property.
Another critical factor is the societal attitude towards failure. In a true free enterprise system, failure is not a stigma but a stepping stone toward success. It is through trial and error that entrepreneurs refine their ideas, hone their skills, and ultimately succeed. A culture that encourages risk-taking, celebrates entrepreneurial spirit, and sees failure as a learning opportunity is one that will generate more innovation and prosperity.
Education also plays a significant role. Equipping individuals with the knowledge and skills to start and manage businesses, understand market dynamics, and adapt to changing economic landscapes is vital. This isn’t merely about promoting business education but encouraging a mindset of creativity and problem solving.
However, it is essential to note that these principles do not exist in a vacuum. The government plays a crucial role in ensuring their existence and efficacy, providing a stable legal framework and enforcing the rules of the game. Nevertheless, the balance is delicate. Overreaching government intervention can stifle creativity, disrupt the natural mechanisms of the free market, and erode private property rights. Thus, the principle of limited government—another pillar of our constitutional order—is central to this discussion.
The government should avoid policies that stifle ingenuity or add unnecessary burdens to entrepreneurs. High taxes, excessive regulations, and restrictive labor laws can serve as barriers to entry, preventing new ventures from getting off the ground and stifling the creativity and dynamism that drive economic growth and job creation.
The connection between the Constitution’s protection of private property rights and individual free enterprise is a testament to the profound wisdom of our Founding Fathers. Their understanding of human nature, individual freedom, and economic principles enabled them to construct a system that has fostered unprecedented prosperity and liberty.
Today, as we face the challenges of an increasingly globalized and digital world, these principles are more important than ever. Protecting private property rights and promoting free enterprise will enable us to preserve individual liberty, spur economic growth, and maintain America’s position as a bastion of invention.
The success of free enterprise in America is rooted in the belief that individuals, not government, are best suited to determine their needs and aspirations. This laissez-faire approach to economic governance has unleashed an unparalleled era of prosperity, creating the world’s largest economy and improving the lives of countless citizens. The unyielding spirit of entrepreneurship, driven by the pursuit of happiness, has fostered a culture of risk-taking and relentless ambition that has propelled America to greatness.
Individual free enterprise embodies the principles of meritocracy, rewarding hard work and creativity while fostering competition. It allows individuals to utilize their unique talents and skills to create value for others and, in turn, realize their own dreams. By removing bureaucratic barriers, free enterprise empowers citizens to participate in an ever-changing economic landscape, ensuring that success is not predestined but earned through dedication and effort.
The right to pursue happiness, as written in the Declaration of Independence, and the ideal of individual free enterprise are intrinsically linked. Together, they form the bedrock of the American dream, empowering individuals to chart their own destinies, create prosperity, and leave a lasting impact on society. Embracing the principles of liberty and free enterprise ensures that the pursuit of happiness remains not just a mere aspiration, but a tangible reality for all American citizens, as it has been for centuries since the nation’s founding.
Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.
A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.
Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.
He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.
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Principle of Private Property Ownership of Land To Encourage Self-Reliance for Maintaining and Strengthening Individual Liberty and American Independence
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 70: Principle of Private Property Ownership of Land To Encourage Self-Reliance for Maintaining and Strengthening Individual Liberty and American Independence – Guest Essayist: Joerg Knipprath, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read By Constituting America Founder, Actress Janine Turner
In 1785, in his book Notes on the State of Virginia, Thomas Jefferson wrote in Query XIX, “Those who labor in the earth are the chosen people of God, if ever he had a chosen people, whose breasts he has made his peculiar deposit for substantial and genuine virtue. It is the focus in which he keeps alive that sacred fire, which otherwise might escape from the face of the earth. Corruption of morals in the mass of cultivators is a phenomenon of which no age nor nation has furnished an example.” In similar tone, in a passage in a letter to John Jay that same year, Jefferson effusively tied together all of the notions American agrarians held dear: “Cultivators of the earth are the most valuable citizens. They are the most vigorous, the most independent, the most virtuous, & they are tied to their country & wedded to its liberty & interests by the most lasting bonds.” He repeated similar sentiments throughout his life.
Jefferson was not alone in these adulatory opinions. Americans, whose beliefs otherwise might be quite heterodox about the nature of virtue or the best government or economic system, broadly shared his views. Nor was this mindset restricted to Americans, who occupied—rather sparsely, on the whole—a large tract of land and whose nation was overwhelmingly agricultural. The French physiocrats of the mid-18th century endorsed agricultural production as the true measure of a nation’s wealth, and land combined with agricultural labor as its only source. Going back further, Aristotle had extolled the virtues associated with agrarian society. But it was Roman writers such as Cato, Cicero, and Virgil whose works most influenced Enlightenment agrarians. Roman republicanism exalted land ownership to the point that senators were formally prohibited from engaging in any but agricultural endeavors, a restriction the senators avoided through various artifices as Rome became a more commercial society. The ideal of the Roman statesman was told in the story of Cincinnatus, the nobleman who was called from his pastoral existence to lead Rome in a time of crisis, only to lay down his office and return to his small farm when the crisis ended. For Americans, the resemblance to George Washington was not a coincidence.
But the most immediate influence on Americans’ exaltation of the yeoman farmer was a school of British Whiggism, the so-called country party. The 17th-century political philosopher James Harrington had penned Oceana, his description of an ideal commonwealth based on roughly equal holdings of land by its citizens. The land must be enough, unencumbered by debts, to provide for himself and his family. Only in this manner could he avoid dependence on another, his would-be master. That independence was crucial to cultivating the virtue necessary for self-government. English essayists of the 18th century, such as John Trenchard and Thomas Gordon, writing in Cato’s Letters, and Henry St. John, 1st Viscount Bolingbroke, with whose works Americans were quite familiar, also advocated the necessary relationship among ownership of an adequate estate in land, independence, virtue, and liberty.
Perhaps the single most influential philosopher for Americans of the Founding was John Locke. As with other political principles, Locke’s ideas on property, virtue, and limited government resonated in Jefferson’s writings. Locke posited that God gave the world to mankind in common. But man had the right to his own labor and could claim as his own both the land with which he mixed his labor and the fruits of his labor in the crops the land produced. At least implicitly, this required a plentiful supply of land that would be available for future generations.
Not surprisingly, Locke’s views found favor among Americans, who saw a virtually limitless bounty of land in their world. Although some areas along the Atlantic seaboard were becoming more populated, it was always possible to decamp for a tract unsettled, at least by Europeans, just a few dozen miles farther west. Various plans of settlement were grounded in the easy availability of land. There was the almost feudal system of land ownership designed for the Carolinas by John Locke, the secretary for one of the proprietors of that colony. Fortunately, his Fundamental Constitutions were substantially amended by the proprietors and then suspended after two decades, in 1690. More consistent with Locke’s other writings was the project of the proprietor of Georgia, James Edward Oglethorpe, in 1733. Oglethorpe designed a plan of economic and social development founded on land grants of equal size. Acquisition of additional land by marriage or purchase was prohibited. Likewise, slavery was prohibited as immoral, but also to prevent the emergence of large plantations as had happened in other colonies.
There was plenty of land in Georgia, as well as in the country west of the Allegheny Mountains. But there was a catch. After the end of French rule in North America, the British government signed treaties with the Indians to end Pontiac’s Rebellion and issued the Proclamation of 1763 to prevent western settlement. Existing settlers were ordered to abandon their tracts. Americans considered this to be a blatant attempt to prevent an increase in the population. The Proclamation was immensely unpopular among all classes, from the land speculators and investors in land syndicates with their fortunes now at risk, to the settlers looking for cheap and plentiful land. It became a major contributor to the ill will emerging against the British government.
Once American independence was achieved, settlers poured through the mountain passes into the western lands of the states and then into the unorganized areas of the Old Northwest. The Confederation Congress adopted the Land Ordinance of 1784, drafted by Jefferson, and the implementing Land Ordinance of 1785 to survey the lands and prepare them for sale.
While the peace treaty with Britain opened up potentially vast tracts of land for sale or, more frequently, squatting, some of the most committed ideologues of American agrarianism were still ill at ease. In particular, the rise of manufactures and merchant commerce troubled them. They saw in England the fate that awaited Americans of future generations. As the population there grew and the supply of land became filled, people were forced into wretched conditions in cities to labor for others. Adam Smith had described their condition in 1776 in Wealth of Nations: Farming required a variety of knowledge and practical understanding; not so factory work. “The man whose whole life is spent in performing a few simple operations, of which the effects too are, perhaps always the same…has no occasion to exert his understanding …. He naturally loses, therefore, the habit of such exertion, and generally becomes as stupid and ignorant as it is possible for a human creature to become.” This was hardly the stuff of the virtuous and enlightened citizen, jealous of his liberty, but ready to sacrifice for the well-being of the community, the free yeoman farmer or artisan suited to self-government in a republic.
Jefferson needed no convincing. He agreed with Smith that the division of labor in the emerging capitalist manufacturing sector produced significant material benefits. But he was also convinced that the nascent banking system with its creation of debt, as well as the monotony of factory work, created a dependency that robbed ordinary citizens of the autonomy needed for republican government. Regardless of material wealth produced by manufacturers and “stock jobbers,” a nation of farmers was better suited for a republic. Writing in Notes on the State of Virginia, Jefferson declared, “Manufacturing, and its attendant commerce, as European evidence had so graphically shown, distorted relationships among men, bred dependence and servility, and spawned greed and corruption which became a canker on the society. A nation of farmers, on the other hand, each of whom owned his own plot of land, who was free and beholden to no one, would assure the preservation of those qualities on which the strength of a republic depended.”
It was important, therefore, to provide land for as many as possible, including future generations. Echoing Locke, Jefferson wrote in a letter to James Madison on October 28, 1785,
Jefferson’s advocacy for the Land Ordinances of 1784 and 1785 reflected his eagerness to promote widespread land ownership. But his most edifying moment was the stroke of good fortune in the form of the Louisiana Purchase of 1803. For a bargain price of $15 million, or an estimated $350 million in today’s money, the territory acquired from France almost doubled the size of the United States. More accurately, the United States acquired the exclusive right to deal with the American Indian tribes that occupied most of the land. While there were other benefits, commercial and military, sufficient to overcome whatever constitutional scruples President Jefferson voiced to others about his authority to make the treaty, he was most gratified that the purchase achieved his goal of plentiful land for his republic of farmers and artisans: “The fertility of the country, its climate and extent, promise in due season important aids to our treasury, an ample provision for our posterity, and a wide-spread field for the blessings of freedom.” By this action, he could assure himself, he had guaranteed a republican future for generations of Americans to come, where the plenitude of land made certain that no one would have to subject himself to exploitation or domination by another.
Whereas Jefferson returned to the theme of his republic of farmers and artisans in frequent correspondences, he was not a systematic theorist of American agrarianism. That description best fits John Taylor of Caroline County, Virginia. Taylor was a lawyer, planter, military officer, and politician. He engaged in scientific agriculture, becoming a leader in promoting crop rotation, and published pamphlets and a book about those endeavors. He also wrote several books about political economy and the connection among land ownership, private happiness, independence defined as republican self-government, liberty, a limited and decentralized political system, division of political powers, and the laissez-faire economics of a free market. He vigorously opposed wealth and political power from the emerging capitalist manufacturing enterprises fueled by burdensome protective tariffs. But his most fervent denunciations were of banks, the paper issued by them unbacked by sufficient specie, and their practice of patronage and lobbying which according to Taylor, secured them unnatural privilege and wealth.
Taylor’s five books, especially his 1814 work, Inquiry into the Principles and Policy of the Government of the United States, brought philosophical discipline to the agrarian mythos among Americans. His contributions to political theory have been declared among the best that Americans have produced. Taylor’s adoration of agrarian republicanism at times took on a religious tone. He tied the story of the Garden of Eden to an agrarian social order and was convinced that an agrarian republic would allow man to regain his lost paradise.
Agriculture provided freedom which, in turn, produced private happiness. With family roots in the land, social organizations could develop organically, and people would enjoy true community through friendship, love, religion, education, and leisure. As well, agriculture provided the independence needed for republican self-government and the resulting public happiness created by wise laws. Manufacturing and capitalism had the opposite effect. In language reminiscent of Adam Smith, and to a degree of Karl Marx, Taylor denounced the emerging factory system as degrading human nature by destroying man’s freedom and happiness. The laborer was nothing more than a wage slave, paid a wage that supported him for that day and left no money for savings and improvement of his condition. Capitalists got the laborers to work for them but did not reward their efforts in commensurate manner. Like Smith and the French physiocrats, Taylor believed that true wealth ultimately was derived through the profits from land. Capitalism robbed that wealth from farmers and workers through tariffs and banks, and substituted paper wealth for true prosperity.
In all societies, some groups or classes dominate the exercise of political power at a given time. In a republic, a landed gentry was best. Perhaps not coincidentally, Taylor was among the landed gentry exercising political power in Virginia. Admittedly, a landed gentry had a degree of inherited power. The disparity in wealth and power among the agrarian class was tolerable, because these resulted from working the land. The broad availability of land and the nature of agricultural work would keep such differences within appropriate limits. On the other hand, a “paper system” of banking and commercial speculation created exorbitant wealth dangerous to society. Such a paper aristocracy relied on patronage and on taxation of productive farmers and laborers to maintain itself.
Taylor’s acceptance of inequality of landed wealth as sufficiently innocuous not to threaten personal liberty or republican self-government touched on a ticklish point for American agrarians. If republican government depended on broad participation by a politically fit and independent people, exercising their freedom through their connection with the land, was it not obligatory on republican government to assure broad equality in land ownership? Those who wrote passionately about the republic of yeoman farmers and artisans inevitably had significant land holdings themselves. Taylor, for example, at one point owned three plantations in Virginia and thousands of acres of western lands, so there was a limit to how far he was willing to press agrarian fundamentalism. There was the scent of self-interest in their discussions when they opposed proposals to redistribute land through “agrarian laws.” The only estates that were redistributed were those seized from Loyalists during the Revolutionary War, and even those were generally sold to purchasers of substantial means, often for speculation.
The opposition to such redistribution was broad and deep among those who determined policy. Jefferson may have been a supporter of the idea of equality in landed estates, but was less enthusiastic about redistributive laws. As he wrote in a letter to Joseph Milligan on April 6, 1816, “To take from one, because it is thought his own industry and that of his fathers has acquired too much, in order to spare to others, who, or whose fathers, have not exercised equal industry and skill, is to violate arbitrarily the first principle of [political] association, the guarantee to everyone the free exercise of his industry and the fruits acquired by it.”
Madison devoted considerable attention to the matter in the debates over the Constitution. He was strongly critical of the more enthusiastic exponents of agrarianism and considered the whole doctrine potentially turbulent. At the Philadelphia Convention, Madison warned about the “leveling spirit” manifested in the tax rebellion of farmers in western Massachusetts in 1786, known as Shays’ Rebellion:
In short, as John Adams succinctly observed in 1790, “Property must be secured, or liberty cannot exist.” People were equal in that no one should be dependent on the will of another, and property, in particular land, made this independence possible. The way to such independence was not, however, through radical redistribution schemes but through the acquisition of plentiful land. Adams observed in a May 26, 1776, letter to James Sullivan:
Americans at the Founding and for several generations thereafter saw themselves and their communities as naturally fit for republicanism precisely because they were “a people of property; almost every man is a freeholder.”
Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.
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Corruption and the Constitution: Principle of Constitutional Law and a Foundation of a Virtuous and Moral People
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, William Morrisey, Ph.D. Essay 29: Corruption and the Constitution: Principle of Constitutional Law and a Foundation of a Virtuous and Moral People – Guest Essayist: Will Morrisey, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, William Morrisey PhDEssay Read By Constituting America Founder, Actress Janine Turner
Corruption means rottenness—disintegration caused not by external pressure but by some inner flaw. Political corruption occurs when a ruler, responsible for the country’s good, the good of the citizens, instead uses his authority to obtain a private benefit—something that seems good for himself, his family, his friends. Distrust and faction then weaken the body politic.
At the Constitutional Convention, the American Founders knew what corruption was. They had read the Bible which had taught them that corruption began with the human heart, that sin persisted in each of them, and that they might succeed in suppressing it. Each man at the Constitutional Convention was wary of the American people, their colleagues, and himself.
They had declared independence from the British Empire, a monarchic regime which had elevated political corruption to a routine practice, a way in which government ran. British monarchs exerted control over Parliament, the supposedly separate legislative branch, by offering key members positions within the royal administration, positions members could hold while continuing to sit in Parliament. The Founders saw a similar form of corruption in George III’s rule over the American colonies. Amongst the “long train of Abuses and Usurpations” designed to reduce the colonists to the status of subjects under an “absolute Despotism,” we find: “He has made Judges dependent on his Will alone, for the tenure of their Offices, and the Amount and Payment of their Salaries,” and “He has erected a Multitude of new Offices, and sent hither Swarms of Officers to harass our People, and eat out their Substance.” Such patronage bound public officials to the monarch, putting them at his service, turning them against governing for the good of the people governed.
George III was no anomaly. “All men having power ought to be distrusted to a certain degree,” James Madison warned, at the Convention. Corruption being ingrained in every human heart, the Framers of the United States Constitution never supposed it to be limited to regimes in which one person or a few persons ruled. Elected representatives in a democratic republic might engage in corrupt rule as readily as tyrants who call themselves kings or oligarchs who call themselves aristocrats. The small republics, the states whose people they represented at the Constitutional Convention had seen any number of such incidences. And the states, delegates agreed, were highly “democratical.”
In late June, the delegates were considering the legislative branch—instantiated by law in what would become Article I of the Constitution. How shall the members of the House of Representatives be paid? And will they be eligible for appointment to the executive branch? Money and power: indispensable to any government, the purpose of which is to secure the unalienable rights of life, liberty, and the pursuit of happiness, but also potentially the means of corruption, whereby the instruments of public good might be diverted to the acquisition of private wealth and aggrandizement.
When it came to paying Congressional representatives, all agreed that they should receive, in the words of one delegate, “adequate compensation for their services.” But who should pay them? To avoid the corruption that might creep in if they set their own salaries, some delegates argued that the states should determine them. Edmund Randolph of Virginia disagreed, arguing, “If the States were to pay the members of the National Legislature, a dependence [upon the States] would vitiate the whole system.” More specifically, Madison observed, this would make Senators “mere Agents and Advocates of State interests and views instead of being the impartial umpires and Guardians of justice and the general Good.” Alexander Hamilton concurred, distinguishing between “the feelings and view of the people” and “the Governments of the States,” as the latter might well be unfriendly to “the General Government.” Since “the science of policy is the knowledge of human nature” as it is seen in ruling and being ruled, and since such knowledge tells us that “all political bodies love power, and it will often be improperly attained,” state legislatures ought not be “the pay masters” of federal officials.
These arguments prevailed. Indeed, the state legislatures were to select the members of the United States Senate anyway, giving the state governments substantial influence on the Congressional conduct. Control over pay would have extended states’ control to the House of Representatives. Article I, section 6 stipulates that “Senators and Representatives shall receive a Compensation for their Services, to be ascertained by Law”—federal law—and “paid out of the Treasury of the United States.”
George Mason expressed no concern about corruption in the form of salaries, but the corruption itself worried and disgusted him. He had also become increasingly concerned about the ability of the states to defend themselves against encroachments by a newly empowered federal government, which, he worried, might ruin the states by corrupt means. When the question of making Congressional representatives ineligible for executive branch offices during their terms, and perhaps for a year after leaving office, he rose to say, “I admire many parts of the British constitution and government, but I detest their corruption.” Citing “the venality and abuses” of the British regime, he described the disqualification of Congressmen from executive offices as “a cornerstone of the fabric of the Constitution” and “the cornerstone on which our liberties depends.” Though mixed, the metaphor was ardently raised, for, whether offices are filled by the executive, as in Great Britain, or by the legislature, as in Virginia (“many of their appointments are most shameful”), “it is necessary to shut the door against corruption.” If legislators are allowed to take executive offices, “they [might] make or multiply offices, in order to fill them”—precisely what George III had done in North America. Mason identified ambassadorial posts as a rich field for such bestowals, as there are many small and obscure countries where a Congressman might find himself and his wife elevated to high and remunerative positions in exchange for a few votes on important national matters. Exactly this practice explains why “the power of the [British] crown has so remarkably increased in the last century.”
Against this, proponents of dual officeholding—in particular, James Wilson of Pennsylvania—maintained that disqualification would prevent good men from serving their country to the fullest extent of their abilities. Elected representatives are likely seen by their fellow citizens as men of virtue and ability. “This is truly a republican principle. Shall talents, which entitle a man to public reward, operate as a punishment?” In reply, Mason deprecated the thought. Can such men not be found outside Congress? Or, if Congressmen leave Congress for executive branch positions, are no good men available to replace them? “If we do not provide against corruption, our government will soon be at an end, nor would I wish to put a man of virtue in the way of temptation.”
Although he opposed Mason on the larger question of empowering the federal government, Hamilton sided with him here. “Our great error is that we suppose mankind more honest than they are.” But “our prevailing passions are ambition and interest.” Therefore, “when a member [of Congress] takes his seat, he should vacate every other office,” whether in the state or the federal government.
For his part, Madison disagreed with his future collaborator on The Federalist. Without the possibility of dual officeholding, he claimed, it will be hard to recruit qualified men for Congress. Further, disqualifying members won’t disqualify their cronies, so corruption will occur, anyway.
The majority of delegates found Mason and Hamilton persuasive. Article I, section 6 thus reads, “no Person holding any office under the United States, shall be a member of either House during his Continuance in Office.” To prevent legislators from creating new federal offices or raising the salaries of new ones and then quitting Congress to occupy one of them, “no Senator or Representative shall, during the Time for which he is elected,” be appointed to any such office (emphasis added).
But who shall appoint executive officeholders? If not the legislators or the president, and surely not the Supreme Court justices, then—who? Mason did not say. But his argument leaves only the states to perform this task. Mason had earlier argued that state legislatures’ election of U.S. Senators provided one means of self-defense for the states. In his mind, state legislative control of executive branch appointments might have been another, even as control of salaries had been, in the eyes of delegates who later joined him in becoming Anti-federalists. If so, the notion went nowhere, and the delegates eventually split the power between presidential appointment and Senatorial approval.
The argument over political corruption thus went well beyond the moral objection to corruption itself—ingrained in human nature, to be sure, but also susceptible to rational discipline and dilution. Corruption raised the overall question the delegates addressed, the question of the structure of the American regime. A republic, if you can keep it, Mr. Franklin famously said. But how to keep it? In shaping a government strong enough both to represent and to rule the people, to secure their unalienable rights and not to undercut them, the Framers sought to set down institutional barriers that would impede corruption, without pretending to remove it from the human heart.
Will Morrisey is Professor Emeritus of Politics at Hillsdale College, editor and publisher of Will Morrisey Reviews, an online book review publication.
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Principle of Appropriate Role and Purpose of Government Upon Protecting the People From Violence and Fraud
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 68: Principle of Appropriate Role and Purpose of Government Upon Protecting the People From Violence and Fraud – Guest Essayist: Andrew Langer, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerEssay Read By Constituting America Founder, Actress Janine Turner
“I do believe that men of genius will be deterred unless possessed of great virtues. We may well dispense with the first characters when destitute of virtue I should wish them never to come forward–But if we do not provide against corruption, our government will soon be at an end: nor would I wish to put a man of virtue in the way of temptation. Evasions, and caballing would evade the amendment. Nor would the danger be less, if the executive has the appointment of officers. The first three or four years we might go on well enough; but what would be the case afterwards? I will add, that such a government ought to be refused by the people–and it will be refused.” – George Mason, Farrand’s Records, Federal Convention, Saturday, June 23, 1787, regarding provisions against fraud and corruption regardless of an invasion’s origin slowly eroding the United States.
In the true spirit of the American founding, George Mason’s assertion during the Federal Convention of 1787 deeply resonates with our contemporary political and social landscape. As he opined, a lack of virtue and unchecked corruption pose significant threats to the integrity and endurance of our government. Today, as we explore the principle of the appropriate role and purpose of government in protecting people from violence and fraud, we must bear these foundational truths in mind. We must also heed the wisdom of Mason, understanding the immense potential of the government as a force for good, but also the catastrophic possibilities when it strays from the path of virtue and integrity.
At its most fundamental level, the government exists to serve and protect its citizenry, a contract defined and limited by the United States Constitution. In this regard, the state’s role as a protector against violence and fraud becomes manifestly clear. This duty underscores the necessity for law enforcement agencies, a system of justice that ensures accountability, and regulatory mechanisms that guard against fraudulent actions. It is within these parameters that the government can and must act, without overstepping its boundaries and encroaching upon individual liberties.
Mason’s words have their roots in the prose written by his fellow Virginian, Thomas Jefferson, in the Declaration of Independence: “to secure… rights, Governments are instituted among Men” and is the very the heart of the United States’ philosophy and the very nature of democratic governance. These words are an affirmation of the contract between the governed and their governors, denoting a central truth of political theory and civil society: the state’s primary purpose is to protect the individual rights of its citizens.
Liberty has an intrinsic value, not as an abstract philosophical concept, but as a practical, living principle that shapes our everyday lives. The freedom to pursue our dreams, express our thoughts, associate with others, and engage in economic transactions without undue restraint is what gives life its richness and vitality. Yet, as vital as individual liberty is, it does not exist in a vacuum. Rights inevitably come into conflict, and when they do, a mechanism is needed to adjudicate those conflicts in a fair and just manner. This is where government steps in.
The role of government in protecting individuals from harm when individual rights conflict is a delicate balancing act. The government must tread carefully to prevent undue encroachments on individual liberty while simultaneously safeguarding the common good. It must protect individual rights without creating a lawless society where might makes right and the strongest prevail over the weakest. In doing so, it preserves the delicate balance between individual freedom and societal stability.
Consider the realm of property rights. Suppose one person’s use of their property causes harm to another’s property, such as pollution flowing downstream from a factory to a farmer’s field. Here, the rights of one individual or group, the factory owners, are in direct conflict with the rights of another, the farmers. If left unresolved, such conflicts can escalate, potentially leading to animosity, legal battles, and even violence.
In this instance, government, as the arbiter of rights and protector of the public good, has a vital role to play. By setting and enforcing regulations that prevent harm, it can ensure the factory owner’s right to conduct business without infringing on the farmer’s rights to a clean environment and productive land. In this way, the government upholds the tenets of liberty and justice for all, ensuring that no individual or group’s rights supersede another’s to the detriment of society.
All just law is rooted in this concept: where rights come into conflict, the party that is more aggrieved/harmed is supposed to be protected by the law. However, as the government steps in to mediate such conflicts, it must be careful not to overreach, a common pitfall in the quest to ensure harmony. Overreach can manifest in excessive regulation, infringing upon individual freedoms, and stifling economic prosperity. The challenge lies in striking the correct balance, respecting individual rights while preserving the common good.
Moreover, it is vital to remember that government itself is not immune to the temptation of overreach. This is precisely why the Founding Fathers, mindful of the potential for tyranny, insisted on a system of checks and balances to prevent any one branch of government from gaining too much power. It is incumbent upon us, as citizens, to remain vigilant against any such overreach, to question and challenge when necessary, and to insist on our rights and freedoms.
The delicate balance between liberty and security is a critical concern. Too much emphasis on security, and we risk suffocating individual freedom; too little, and we expose ourselves to the danger of anarchy and lawlessness. This tension forms the crux of the government’s challenge in protecting its people from violence and fraud while preserving the inalienable rights of its citizenry.
However, in today’s increasingly complex society, the government’s role is constantly being tested and redefined. As we delve further into the 21st century, we find ourselves grappling with unprecedented challenges—cybercrime, international terrorism, economic fraud on a massive scale—that blur the boundaries of the state’s role. In this context, it is crucial to reassert the primacy of integrity and virtue, two pillars Mason identified as essential to good governance. Without them, the government risks becoming a tool for the powerful, rather than an institution that serves its people.
Indeed, Mason’s concerns about corruption, temptations, and the erosion of government integrity remain as pertinent today as they were in the 18th century. The key to preserving the integrity of our government lies in adhering to the principles of transparency, accountability, and the rule of law. Our elected officials must remain accountable to the people they serve, demonstrating their commitment to these ideals in every decision they make. Additionally, the government’s regulatory role must be applied uniformly, without favor or prejudice, to ensure a level playing field for all.
Mason was also prescient in his prediction of how unchecked corruption could spell the end of a government. In this, we are reminded of the ever-present need for vigilance and active participation from the citizenry. The fight against corruption and fraud should not be left to the government alone. As citizens, we must hold our government accountable, demanding transparency and integrity in all its dealings. Furthermore, we should also resist the allure of complacency, instead embracing our civic duty to contribute to the democratic process, whether that be through voting, peaceful protest, or public discourse.
Mason’s words serve as a beacon, guiding us through the murky waters of modern governance. As we navigate the complexities of the 21st century, his emphasis on virtue, the prevention of corruption, and the importance of a government that serves its people rather than its self-interests continues to ring true. As we affirm the government’s role in protecting us from violence and fraud, we must also insist on its adherence to the principles that have defined our nation since its inception: liberty, integrity, and the unyielding pursuit of justice. Only by doing so can we ensure the preservation of our government and the endurance of America.
The role of government as the protector of individual rights when they come into conflict is an essential one. It balances the scale between liberty and societal stability, ensuring harmony among conflicting interests. Yet, it must perform this duty with due respect for the very rights it is sworn to protect, treading the line between regulatory oversight and individual freedom. As we navigate these complex issues, we must remember that preserving liberty is the ultimate goal, and a government that respects this will indeed be a government of the people, by the people, for the people.
Andrew Langer is President of the Institute for Liberty, a Fellow with Constituting America, as well as Chairman and Founder of the Institute for Regulatory Analysis and Engagement. IFL is a non-profit advocacy organization focused on advancing free-market and limited government principles into public policy at all levels. IRAE is a non-profit academic and activist organization whose mission is to examine regulations and regulatory proposals, assess their economic and societal impacts, and offer expert commentary in order to create better public policies. Andrew has been involved in free-market and limited-government causes for more than 25 years, has testified before Congress nearly two dozen times, spoken to audiences across the United States, and has taught at the collegiate level.
A globally-recognized expert on the impact of regulation on business, Andrew is regularly called on to offer innovative solutions to the challenges of squaring public policy priorities with the impact and efficacy of those policies, as well as their unintended consequences. Prior to becoming President of IFL and founding IRAE, he was the principal regulatory affairs lobbyist for the National Federation of Independent Business, the nation’s largest small business association. As President of the Institute for Liberty, he became recognized as an expert on the Constitution, especially issues surrounding private property rights, free speech, abuse of power, and the concentration of power in the federal executive branch.
Andrew has had an extensive career in media—having appeared on television programs around the world. From 2017 to 2021, he hosted a highly-rated weekly program on WBAL NewsRadio 1090 in Baltimore (as well as serving as their principal fill-in host from 2011 until 2021), and has filled in for both nationally-syndicated and satellite radio programs. He also created and hosted several different podcasts—currently hosting Andrew and Jerry Save The World, with long-time colleague, Jerry Rogers.
He holds a Master’s Degree in Public Administration from Troy University and his degree from William & Mary is in International Relations.
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Principle of Strong Defense Capability To Protect the United States Against the Danger and Severity of Treason
James P. Pinkerton, 90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog Essay 67: Principle of Strong Defense Capability To Protect the United States Against the Danger and Severity of Treason – Guest Essayist: James P. Pinkerton, James P. Pinkerton, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
The new movie Oppenheimer offers us a window into the past: Into a key moment in the evolution of our national defense—and along the way, the film underscores the importance of fending off treason.
The authors of the U.S. Constitution, steeped as they were in history, knew all about the danger a nation faced from betrayal. In particular, the Catilinarian Conspiracy of the ancient Roman Republic loomed large in their minds, such that in the 18th century, “Catiline” became synonymous with “traitor.” Yet that same knowledge of history told the Americans that oftentimes in the past, mere dissent, peaceful and legitimate, had been labeled as treachery, the easier to crush the dissenters. So Article Three, Section Three, of the Constitution carefully circumscribes the offense; it declares that treason “shall consist only in levying War against [the United States], or in adhering to their Enemies, giving them Aid and Comfort.” Explaining this narrowly constructed language in The Federalist Papers, the essays aimed at encouraging the ratification of the Constitution, James Madison wrote, “Artificial treasons have been the great engines by which violent factions . . . have usually wreaked their alternate malignity on each other.” That is, bad regimes were too easily tempted to label troublemakers as traitors. Seeking to reassure Americans that their rights and liberties would be protected, Madison pledged that the Constitution establishes “a barrier to this peculiar danger, by inserting a constitutional definition of the crime, fixing the proof necessary for conviction of it, and restraining the Congress, even in punishing it, from extending the consequences of guilt beyond the person of its author.” In other words, no overbroad definition of treason, and no collective punishment—no reigns of terror—for the acts of an individual.
The Constitution’s sense of moderation and due process informs the new movie about J. Robert Oppenheimer, director of the laboratory at Los Alamos, N.M., which developed the atomic bomb during World War Two. Oppenheimer was a scientific genius blessed with, in addition, great skills of organization and leadership. And he was also at least something of a communist. Thus the paradox in the film: Oppenheimer was needed for national defense, and he was also a potential security threat.
Beyond any reasonable doubt, the atomic bomb has been vital to defending America and protecting American lives. During World War Two, there was reason to believe that Nazi Germany was building an atomic weapon, and we had to have the bomb before Hitler. And even after that satanic regime was crushed, the other enemy, Japan, was still fighting, still killing Americans; the Okinawa campaign of April-June 1945 led to the death of some 12,500 GIs, as well as more than 110,000 Japanese. Yet despite these terrible defeats, Japan showed no inclination to give up its hopeless fight—until the U.S. used atomic bombs in August 1945. The carnage of Hiroshima and Nagasaki notwithstanding, Japan’s surrender saved hundreds of thousands of American lives, and many millions of Japanese lives. To illustrate the depths of the challenge the U.S. faced, in 1946, Karl Compton, president the Massachusetts Institute of Technology, reported on his conversation with a Japanese military officer who suggested that were it not for the intervening surrender, every Japanese would have died combating Americans. “We would have kept on fighting until all Japanese were killed, but we would not have been defeated,” the officer told Compton. The population of Japan at the time was 77 million.
So Oppenheimer was a hero of our national defense, just as Americans were heroes for mobilizing the resources needed to build the bomb. The Manhattan Project employed a total of 610,000 Americans. And some of those Americans were traitors, spies for the Soviet Union. Only after World War Two, with the onset of the Cold War against the Soviets, did we discover the espionage of such figures as Klaus Fuchs, David Greenglass, and Ted Hall. All had worked at Los Alamos under Oppenheimer. Fuchs and Greenglass were tried, convicted, and imprisoned—but in both cases, for less than a decade (Fuchs served his time in Britain). As for Hall, he was stripped of his security clearance, but allowed to continue his career as a physicist.
This pattern of treachery, of course, reflected on Oppenheimer himself. In 1954, after a quasi-judicial proceeding lasting two months—complete with witnesses to be examined and cross-examined by lawyers—Oppenheimer was stripped of his security clearance. Yet even so, he was free to live his life; he wrote a book, lectured widely, toured the world (although not the USSR or any other communist country), and even received an award from President Lyndon Johnson in 1963. He died in 1967.
So we can see: The Constitution’s carefully crafted words about treason—and the overall tone of restraint applied to the charge—prevented any of these convicts and suspects from drastic punishments. (Other spies of that era were treated more harshly.)
The freedoms accorded to us by the Constitution have made us prosperous, of course, in no small part because liberty makes the U.S. a magnet for talent from around the world—four of the top Manhattan Project scientists were born in Hungary, and none of them were spies. Those strengths give us the capacity to build wonder-weapons such as the atomic bomb. And yet that same freedom makes it harder for us to keep secret our secrets.
So this is our Republic: If we can keep it.
James P. Pinkerton worked in the White House domestic policy offices of Presidents Ronald Reagan and George H.W. Bush and in their 1980, 1984, 1988 and 1992 presidential campaigns. In 2008, he served as a senior adviser to Mike Huckabee’s presidential campaign. From 1996 to 2016, he was a Contributor to the Fox News Channel. A frequent contributor to Breitbart, The Daily Caller, and The American Conservative, he is a senior fellow at the America First Policy Institute. He is finishing a book on directional investment.
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Alexa McMillan, Woodbridge, Virginia – 2024 Turner Maurice Gauntt, Jr. Exemplary Citizen Award Winner
BlogAlexa McMillan is a Senior from Woodbridge, Virginia, who enjoys studying the topic of mental health. She’s been a part of multiple clubs at her school such as the National Honors Society, Black Student Union, and she was co-president of her schools first ever NAMI (National Alliance on Mental Illness) On-Campus club. She loves working in her community and helping those around her to the best of her abilities. She plans on attending Randolph-Macon College to study Psychology with a minor in Black Studies, hoping to one day work with minority youth who struggle with their mental health. She loves playing and watching sports, creating art, and spending time outdoors in her free time. Alexa is so grateful for every opportunity that she’s been given and it couldn’t have been done without her amazing parents as well as God who has gotten her through it all.
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Parthiv Varanasi, Plano, Texas – 2023 Turner Maurice Gauntt, Jr. Exemplary Citizen Award Winner
BlogParthiv Varanasi is an 18-year-old who is graduating from Plano East Senior High School in Plano, TX. He plans to attend the University of Texas at Austin to pursue a double major in Mathematics and Economics and wants to work in international economic policy eventually. Outside of school, Parthiv has been playing tennis for 11 years competitively and has been on the varsity tennis team for four years, serving two of them as the captain of the team. He has also been a leader in his high school’s JROTC program for four years reaching the senior-most leadership position as the Battalion Commander. In the JROTC program, Parthiv led the Academic team and qualified for the JROTC Leadership and Academic Bowl International Championship. In his free time, he enjoys cooking and being active through running and rock climbing. During his time in high school, Parthiv helped raise over 15,000 pounds of food for homeless people, wrote a 4000-word essay evaluating the 17th amendment, and got selected to represent his peers and programs on the Principal’s Advisory Committee and the Student-Athlete Leadership Team.
Principle of Unity as Americans, Limiting Faction Through Election Only of Representatives Who Understand and Will Uphold the United States Constitution
90 in 90 2023, Ron Meier, 6. Guest Constitutional Scholar Essayists, Blog Essay 66: Principle of Unity as Americans, Limiting Faction Through Election Only of Representatives Who Understand and Will Uphold the United States Constitution – Guest Essayist: Ron Meier, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Ron Meier, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
“They were likewise sensible that on a subject so comprehensive, and involving such a variety of points and questions, the most able, the most candid, and the most honest men will differ in opinion…Although many weeks were passed in these discussions, some points remained, on which a unison of opinions could not be effected. Here again that same happy disposition to unite and conciliate, induced them to meet each other; and enabled them, by mutual concessions, finally to complete and agree to the plan they have recommended, and that too with a degree of unanimity which, considering the variety of discordant views and ideas, they had to reconcile, is really astonishing…Reflect that the present plan comes recommended to you by men and fellow citizens who have given you the highest proofs that men can give, of their justice, their love for liberty and their country, of their prudence, of their application, and of their talents. They tell you it is the best that they could form; and that in their opinion, it is necessary to redeem you from those calamities which already begin to be heavy upon us all.” – John Jay, first Chief Justice of the United States Supreme Court, in his pamphlet, A Citizen of New York: An Address to the People of the State of New York, April 15, 1788.
“I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”
The Oath of Office for elected and appointed officials of the United States government, including Congressional Senators and Representatives, states that they will “support and defend” and “bear true faith and allegiance” to the United States Constitution. Yet, the first time the Constitution was read aloud in the Congress was in 2011. Every two years since, at the beginning of each new Congressional term, members of the House from both parties, for most years since 2011, read aloud the Constitution.
Many Americans support Congress taking time (approximately 45-90 minutes) at the beginning of each Congressional session to read aloud the document they pledge to support; many other Americans consider the reading a waste of time. Videos of the readings seem to support the latter opinion. The only members of Congress in the Chamber during the reading appear to be those who read passages. If all members are not present following along, one can easily conclude that there is little to no value to the exercise.
In September, 1787, upon completion of the writing of the Constitution, a Mrs. Powel is reported to have asked Benjamin Franklin, upon exiting Independence Hall in Philadelphia, “Well, Doctor, what have we got, a republic or a monarchy?” Dr. Franklin replied “A republic, if you can keep it.”
The creation of the document, the Constitution, over the summer of 1787 involved much heated debate among the Convention’s delegates, focused primarily on the concern over the transition from a Confederation, where the states were relatively independent and sovereign, to a Representative Republic, which many feared would eventually become more authoritarian in practice, leaving the states with little to no sovereign powers. New York’s ratification was a concern. Alexander Hamilton and John Jay of New York and James Madison of Virginia took it upon themselves to write the Federalist Papers for publication in New York newspapers to promote ratification by New York.
Jay also wrote a pamphlet entitled Address to the People of New York in April 1788, to further convince New York to ratify the Constitution. At the time of his Address, only six of the required nine states had ratified the Constitution. New York ratified the document in July, after the required nine had been achieved.
After the Constitution was ratified, the desired “more perfect union” quickly reflected Madison’s warning of faction, expressed in Federalist 10. Jefferson and Madison formed the Democratic Republican Party to oppose their perceived centralized national government tendencies of the Federalist Party of George Washington and John Adams. Over the past 231 years, the “more perfect union” has been under constant attack and counterattack by factions.
Some of today’s influential politicians believe that the 1787 Constitution no longer is relevant in a more pluralistic and modern nation than existed in 1787. Some others differ and believe that the core principles of the Declaration of Independence and the Constitution reflect the best aspirations of the nation formed in the 18th century, that those aspirations remain relevant today and must be retained.
So, many questions are worth asking. For example, if a member of Congress professes to be a Socialist and intends to propose legislation that makes the country more Socialist in nature, is he or she not “bearing true faith and allegiance” to the Constitution? If a member of Congress encourages universities to stifle the speech of members of opposition parties in the classroom and at on campus events, is he or she rejecting the First Amendment to the Constitution, not “supporting and defending” the Amendment? Many other similar questions can be posed.
All factions over the past 231 years have believed that they have better plans for how the American government should be structured. But, John Jay’s 1788 remarks on that topic are as relevant today as they were in 1788.
Jay also noted in his address to the People of the State of New York that:
“zeal for public good, like zeal for religion, may sometimes carry men beyond the bounds of reason. Remember that a power to do good, always involves a power to do harm. The objections made to it (the Constitution) are almost without number, and many of them without reason—some of them are real and honest, and others merely ostensible.”
He acknowledges man’s hubris, saying:
“Let it be admitted that this plan, like everything else devised by man, has its imperfections: That it does not please everybody is certain and there is little reason to expect one that will. It is a question of great moment to you, whether the probability of your being able seasonably to obtain a better, is such as to render it prudent and advisable to reject this, and run the risk.
They do not hold it up as the best of all possible ones, but only as the best which they could unite in, and agree to. What reason have we at present to expect any system that would give more general satisfaction?”
Today, some on both sides of the political divide suggest that we should have a Constitutional Convention. Jay addressed this also.
“Some will answer, let us appoint another Convention. This reasoning is fair, and as far as it goes has weight; but it nevertheless takes one thing for granted, which appears very doubtful; for although the new Convention might have more information, and perhaps equal abilities, yet it does not from thence follow that they would be equally disposed to agree. The contrary of this position is the most probable. You must have observed that the same temper and equanimity which prevailed among the people on the former occasion, no longer exists. We have unhappily become divided into parties.
Nor will either party prefer the most moderate of their adherents, for as the most staunch and active partisans will be the most popular, so the men most willing and able to carry points, to oppose, and divide, and embarrass their opponents, will be chosen. The same party views, the same propensity to opposition, the same distrusts and jealousies, and the same unaccommodating spirit which prevail without, would be concentrated and ferment with still greater violence within. As vice does not sow the seeds of virtue, so neither does passion cultivate the fruits of reason. To expect that discord and animosity should produce the fruits of confidence and agreement, is to expect “grapes from thorns, and figs from thistles.”
A discordant warning follows:
“But if for the reasons already mentioned, and others that we cannot now perceive, the new Convention, instead of producing a better plan, should give us only a history of their disputes, or should offer us one still less pleasing than the present, where should we be then? The old Confederation has done its best, and cannot help us; and is now so relaxed and feeble, that in all probability it would not survive so violent a shock. Then “to your tents Oh Israel!” would be the word.”
Jay concludes, saying:
“Let us also be mindful that the cause of freedom greatly depends on the use we make of the singular opportunities we enjoy of governing ourselves wisely; for if the event should prove, that the people of this country either cannot or will not govern themselves, who will hereafter be advocates for systems, which however charming in theory and prospect. are not reducible to practice. If the people of our nation, instead of consenting to be governed by laws of their own making, and rulers of their own choosing, should let licentiousness, disorder, and confusion reign over them, the minds of men everywhere, will insensibly become alienated from republican forms, and prepared to prefer and acquiesce in Governments, which, though less friendly to liberty, afford more peace and security.
Some of our Congressional Representatives and Senators may sincerely believe that a better government can be formed than the Republic under which we have prospered for 231 years. If so, then they should meet, not in a Constitutional Convention, but in study groups outside of Congress to discuss, plan, and test their ideas against history. In the meantime, their duty, expressed in their oath of office, is to better understand the Constitution under which they serve and to faithfully uphold its principles and laws. They should not propose legislation, nor ignore enforcement of existing legislation, that they can, and should, know is inconsistent with the Constitution to which they have obligated themselves to “bear true faith and allegiance” as well as to “protect and defend.”
Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries.
Sources:
Bowen, Catherine. Miracle at Philadelphia. New York: Little, Brown and Company, 1986
“I Do Solemnly Swear” – The Oath Of Office And What It Means | FedSmith.com
1787: Jay, Address to the People of N.Y. (Pamphlet) | Online Library of Liberty (libertyfund.org)
Order of States in Ratification of the US Constitution (thoughtco.com)
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Principle of Civil Over Military Authority: Protection Against Corruption, Foreign or Domestic Attempts To Divide and Destroy America
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 65: Principle of Civil Over Military Authority: Protection Against Corruption, Foreign or Domestic Attempts To Divide and Destroy America – Guest Essayist: Tony Williams, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsEssay Read By Constituting America Founder, Actress Janine Turner
The way is plain, says the anonymous Addresser. If War continues, remove into the unsettled Country; there establish yourselves, and leave an ungrateful Country to defend itself. But who are they to defend? Our Wives, our Children, our Farms, and other property which we leave behind us. or, in this state of hostile separation, are we to take the two first (the latter cannot be removed), to perish in a Wilderness, with hunger, cold and nakedness? If Peace takes place, never sheath your Swords Says he until you have obtained full and ample justice; this dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country? – George Washington, Speech to the Officers of the Army at Newburgh, in response to petitions for the United States military to protest in mutiny. March 15, 1783.
In late 1782, General George Washington was encamped with the army at Newburgh, New York and was deeply troubled. He had won the Revolutionary War with the stunning allied victory over the British at Yorktown and awaited word of a preliminary peace treaty that had been signed in France. However, the British still occupied New York City. Virginia revoked its approval of a five-percent tariff which meant that Congress had little funds. Therefore, it could not pay the officers and soldiers of the Continental Army who were increasingly disgruntled and ready to mutiny. Washington would soon face one of his greatest crises that would test his character and the survival of the republic.
Throughout the war, as Commander-in-Chief, Washington had scrupulously deferred to the civilian authorities of the states and the national Congress. Even when the states and Congress did not pay the troops or offer much-needed supplies, weapons, and money, the general always supported the republican government. He was often frustrated by the civilian government as it hampered the war effort, but he set the right precedents for civil-military relations within a republic.
On December 28, the officers sent a delegation from Newburgh to Congress with a threatening petition that read, “We have borne all that men can bear – our property is expended – our private resources are at an end, and our friends are wearied and disgusted with our incessant applications.” They warned, “Any further experiments on [our] patience may have fatal effects,” and hinted at an overthrow of Congress and civilian government.
A few politicians in Philadelphia saw an opportunity to use the anger to secure a more powerful central government rather than the weak government under the Articles of Confederation. For example, financier Robert Morris threatened to resign if Congress did not pass a tax to collect revenue to pay the soldiers. Representative Alexander Hamilton and others also wanted to use the threats of the officers to pressure Congress to adopt greater powers.
Despite the woeful financial situation, Washington did not stand alone in his support of Congress. His trusted friend and general of the artillery, Henry Knox, was a patriot who refused to take the bait of his fellow officers and defended the civilian government. Knox told them, “I consider the reputation of the American Army as one of the most immaculate things on earth. We should even suffer wrongs and injuries to the utmost verge of toleration rather than sully it in the least degree.”
In February, Hamilton tried to persuade Washington to join the scheme. Hamilton wrote, “The claims of the army urged with moderation, but with firmness, may operate on those weak minds . . . so as to produce a concurrence in the measures which the exigencies of affairs demand.” Washington would have none of it and responded that the consequences of a general mutiny against Congress “would at this day be productive of civil commotions and end in blood. Unhappy situation this! God forbid we should be involved in it.” He cautioned Hamilton that, “the army is a dangerous instrument to play with.”
In mid-March, General Horatio Gates, the hero of the American victory at the Battle of Saratoga in 1777, joined the conspiracy. Gates’ aide penned an address to American soldiers that fanned their anger towards Congress: “Faith has its limits, as well as temper; and there are points beyond which neither can be stretched.” Gates called the officers to a meeting to discuss the situation.
The rebellion against the government was averted by the character of George Washington, who dedicated himself to the republican principle of military deference to the civilian government. He learned about the Newburgh conspiracy and strode into the appropriately-named Temple of Virtue on the symbolically-fraught March 15—the Ides of March. In the Newburgh Address, he called on his soldiers to stop those who would “overturn the liberties of our country, and who wickedly attempt to open the flood gates of civil discord.”
Washington continued: “This dreadful alternative, of either deserting our Country in the extremest hour of her distress, or turning our Arms against it…what can this writer have in view, by recommending such measures? Can he be a friend to the Army? Can he be a friend to this Country?” His view of patriotism was rooted in Roman virtue—serving the republic, acting with reason over passion, putting country over himself, respecting civilian authority.
When the general’s patriotic appeal fell somewhat flat and his audience seemed unpersuaded, Washington made a dramatic appeal based upon his love of theater. He pulled out his glasses while stating, “Gentlemen, you will permit me to put on my spectacles, for I have not only grown gray, but almost blind, in the service of my country.” Most of the men present had never seen their general use eyeglasses; this simple action reminded the officers that Washington, like the men he led, had made great sacrifices for the cause of liberty. The men renounced their intent to overthrow Congress and pledged their support for the republican government.
Washington quelled the rebellion in the army and established the right precedent for civilian control of the military. He refused to become a Caesar who overthrew the Roman republic for his own glory and became a modern Cincinnatus who served the republic in its hour of need and returned to his plow. The Newburgh Conspiracy became Washington’s finest hour.
The history of American civil-military relations has seen its share of challenges from ambitious individuals. Perhaps the most notable and infamous case was President Harry Truman firing an insubordinate General Douglas MacArthur during the Korean War. In each challenge, the example laid down by Washington held, and the American republic continued to be governed by the constitutional rule of law and popular self-rule rather than military dictatorship.
Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.
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Principle of Peace, Commerce and Honest Friendship With All Nations, Entangling Alliances With None
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 64: Principle of Peace, Commerce and Honest Friendship With All Nations, Entangling Alliances With None – Guest Essayist: Tony Williams, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsEssay Read By Constituting America Founder, Actress Janine Turner
“The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible. So far as we have already formed engagements, let them be fulfilled with perfect good faith…Our detached and distant situation invites and enables us to pursue a different course. If we remain one people under an efficient government. the period is not far off when we may defy material injury from external annoyance; when we may take such an attitude as will cause the neutrality we may at any time resolve upon to be scrupulously respected; when belligerent nations, under the impossibility of making acquisitions upon us, will not lightly hazard the giving us provocation; when we may choose peace or war, as our interest, guided by justice, shall counsel. Why forego the advantages of so peculiar a situation? Why quit our own to stand upon foreign ground? Why, by interweaving our destiny with that of any part of Europe, entangle our peace and prosperity in the toils of European ambition, rivalship, interest, humor or caprice? It is our true policy to steer clear of permanent alliances with any portion of the foreign world; so far, I mean, as we are now at liberty to do it; for let me not be understood as capable of patronizing infidelity to existing engagements…Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.
When George Washington assumed the office of the presidency in 1789, the new republic faced a world fraught with imperial rivalries of the European great powers. This struggle played itself out in North America where the British ruled Canada and had troops stationed in forts along the northwestern frontier of the United States. The Spanish held Mexico, the West, and the Floridas. Meanwhile, the new nation soon went to war with several hostile Native American tribes on the frontier. Several powers, including the French, contended for the valuable sugar islands of the West Indies, or Caribbean. The British Empire excluded its former colonies from lucrative imperial trade.
Washington and his Cabinet along with members of Congress had to formulate the principles and policies of American foreign policy according to the dictates of constitutionalism, American ideals, and prudence. The outbreak of the French Revolution in 1789 and its expansionary wars compounded the difficulties of American diplomacy in the early 1790s.
President Washington had to navigate these shoals keeping in mind that the new nation was weak compared to the great empires. The United States had only a small army and not much of a navy. The economy was similarly weak as the country was locked out of former markets in the British West Indies and had to get its public credit in order by paying off the Revolutionary War debt. National security was a priority for the Washington administration but securing it would not be easy.
When the French revolutionaries sought to spread the fires of revolution to liberate the people of Europe from monarchy and aristocracy, Washington had to decide an appropriate response for the new nation. Washington and his Cabinet debated the issue and prudentially decided that it was ill-prepared for war and would not join the French despite their 1778 treaty from the American Revolution. The United States would remain neutral with a presidential Proclamation of Neutrality.
This led to an internal debate within the administration that was played out in essays published in partisan newspapers. Among them were Alexander Hamilton writing as Pacificus, who urged presidential prerogative over asserting neutrality, and James Madison writing as Helvidius, who thought the Congress had power over war and peace. The debate fueled the emerging contentious party system and split the administration into factions.
The Washington administration pursued a policy of trade and non-interference, but the British and French were at war and began seizing American vessels because they traded with each of the belligerents. Soon, Washington dispatched John Jay to Britain to resolve the seizure of ships, impressment of American sailors into the Royal Navy, and outstanding issues from the Revolutionary War including western British forts.
The resulting Jay Treaty benefited the United States, including some trade concessions in the West Indies, but it did not resolve many of the key issues including impressment. Moreover, it further inflamed partisan tensions among Americans and in Congress. Even worse, as it soothed relations with Great Britain, the French saw it as an Anglo-American alliance aimed against France. The French became more belligerent and ramped up their seizure of American vessels leading to an informal war that continued into the John Adams administration.
In 1795, the administration signed the Pinckney Treaty with Spain which extended the western boundary of the United States to the Mississippi River. Americans also won long-contested rights to free navigation of the Mississippi River to conduct trade.
By the end of his second term, President Washington could proudly survey the diplomatic accomplishments of his administration. From a position of relative weakness, he had averted war, successfully negotiated important treaties, established a strong presidency respecting foreign policy, and placed the country in a stronger position in a dangerous world. As he prepared to retire and worked on his Farewell Address to his fellow countrymen, he used his decades of experience as general and president to lay down certain principles of American foreign policy.
In his Farewell Address, Washington asserted that it should be the policy of the United States to “steer clear of permanent alliances with any portion of the foreign world.” He explained that it should be the principle of the United States to establish “peace, commerce and honest friendship with all nations, entangling alliances with none. The great rule of conduct for us in regard to foreign nations is in extending our commercial relations, to have with them as little political connection as possible.”
Washington promoted an enlightened and principled national self-interest in foreign relations. The United States would pursue its self-interest trading with other nations and forming temporary alliances in its interest. As the French example proved, a nation might be a friend at one point but could become an enemy at another. So, the United States would not form a permanent alliance that would bind it in an untenable situation. Instead, as with all nations, it would pursue its own interest.
However, Washington strikes an important chord of principled self-interest according to the founding ideals of an exceptional nation. In the Address, he speaks of “amity,” “justice,” “liberality,” “good faith,” and “harmony” as the principles guiding American relations with the other countries of the world. He proposed the idea that America should demonstrate a good example for the world. He wrote, “It will be worthy of a free, enlightened, and, at no distant period, a great nation, to give to mankind the magnanimous and too novel example of a people always guided by an exalted justice and benevolence.”
American foreign policy has changed over the last two centuries. Successive administrations through the nineteenth century generally followed Washington’s vision; however, during the twentieth century, President Woodrow Wilson helped commit the United States to “making the world safe for democracy” and exporting it abroad. Wilsonian internationalism meant that the United States would not merely be a “City Upon a Hill” for other countries to emulate its ideals but would take an active role in bringing about more democratic regimes. This expansive and controversial foreign policy was at odds with Washington’s vision in the Farewell Address. George Washington’s words and example reminds us to exercise justice and good faith toward other nations but also defending American national security with enlightened self-interest.
Tony Williams is a Senior Fellow at the Bill of Rights Institute and is the author of six books including Washington and Hamilton: The Alliance that Forged America, with Stephen Knott. Williams is currently writing a book on the Declaration of Independence.
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Principle of Maintaining Freedom and Independence Through an Armed Citizenry: Right To Protect One’s Person and Property by the Personal Keeping and Bearing of Arms
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read By Constituting America Founder, Actress Janine Turner
“to preserve liberty, it is essential that the whole body of the people always possess arms.” – Richard Henry Lee, Federal Farmer XVIII, January 25, 1788.
A significant point of contention in the debates over the proposed United States Constitution was the maintenance of a peacetime army. Some stalwart opponents, like Eldridge Gerry of Massachusetts, wanted a ban on a “standing” army written into the Constitution. Others wanted the text to specify a maximum number and an expressly limited peacetime use, such as for border garrisons. In the minds of many Americans, standing armies were a direct and dire threat to the people’s liberties. Recalling their use by the last Stuart kings and the debate over them in the English Glorious Revolution of 1688, those Americans saw such an army as a tool of monarchical absolutism unfit for a republican system.
Instead, those critics wanted to rely on the militias of the states as the principal armed forces. Militia service long had been the mainstay of colonial self-government. It extended to all men able to bear arms, with some variations as to age and race. Universal service was a practical necessity to suppress insurrections and counter Indian raids. It also maintained the ancient republican connection between military service and qualification to participate in the community’s public affairs. Laws required individuals to keep arms sufficient to serve in the militia and, in some communities, to bear those arms while walking about.
The critics’ alarms about the Constitution were only magnified when they saw that the proposed charter also gave Congress the power to organize, arm, and discipline the militia, and to govern the militia employed in the service of the United States. They considered this to be an obvious attempt to deprive the states of control over their militias by establishing a highly trained national “select militia” composed of only a small portion of the whole eligible militia, in effect creating a standing army by another means. The distinction between the whole militia and a select militia was a common practice at the state level and was also followed by the federal government with the Militia Act of 1792. Although men fifty-five years old might be part of a state’s whole militia, they were unlikely to be called out for actual service at that age. Alternatively, critics charged that these provisions allowed Congress to neglect funding and training the militia altogether.
Supporters of the Constitution pointed to the Revolutionary War to expose the deficiencies in armament and training of the militias. General George Washington wrote the Continental Congress about his wartime experience with the militia:
The general tenor of Washington’s letter reflected a common critique. Alexander Hamilton, a former militia officer who also served in the regular Continental Army, was more generous in Essay No. 25 of The Federalist, but nevertheless made similar points:
It was not enough for the Constitution’s supporters to point out the practical need for a regular army. Thoughtful critics might accept that, but still be alarmed by the danger an army posed to republican liberty. James Madison in Essay No. 46 of The Federalist sought to assuage those concerns:
Madison lay great stock in three facts, that Americans were armed, that they could form themselves into militias that would still be commanded by men chosen by them or their states, and that there existed subordinate governments—the states—to which they were more attached than to the national government. As he wrote, “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”
The critics were not persuaded. True, even if Congress set up a select militia, or, worse, if Congress refused to fund the militia, the states could still, under their reserved powers and general principles of federalism, maintain militias outside those parameters. That authority was eventually confirmed by the Supreme Court in 1820 in Houston v. Moore. The problem was what else Congress might do. After setting up a select militia, Congress could, the critics reasoned, then pass laws to disarm the rest of the citizenry. Something else was needed to protect the people’s liberties.
Madison in that same essay had noted the distinction between the American states and other countries. In the kingdoms of Europe with their military establishments, “the governments are afraid to trust the people with arms.” But something more concrete than reliance on the willingness of politicians to trust the people was needed. American politicians are not necessarily and inherently more respectful of the people’s liberties or less prone to oppressive actions than the European versions. If Congress and the President join to form a national tyrant, and the states have been rendered impotent, the people have the right to organize themselves to oppose that tyrant, just as the Minutemen did to King George and his regular army. As the Declaration of Independence averred, each person is endowed by the Creator with certain “unalienable rights,” and each person individually has the right to defend his life and liberty, even if the right as a practical matter sometimes might be carried out collectively. As concerns a tyrannical government, that right normally might be exercised through the state’s formal militia structure, but it does not depend on such a structure.
It is this right of self-defense exercised through a personal right to keep and bear arms that is reflected in the language of the Second Amendment. Supreme Court Justice Joseph Story made that point in a famous passage in his influential 1833 work on the Constitution. “The militia is the natural defence of a free country,” he wrote. “The right of the citizens to keep and bear arms has justly been considered, as the palladium of the liberties of a republic; since it offers a strong moral check against the usurpation and arbitrary power of rulers.”
The right to life, including the right to defend oneself and others from those who wantonly pose an imminent threat to that right, is the most fundamental of all rights. No government may deprive an individual of that right, including the right of defense by means reasonable and commensurate to the threat. That right of defense extends to defense of the community. It is an individual right. While, in the latter case, it is usually exercised collectively, that is not a requirement and is not the basis of the right’s existence.
The connection between the individual nature of the right and its practical collective application when used in defense of the community is reflected in the words of the Second Amendment. As the late Justice Antonin Scalia explained for the Supreme Court in D.C. v. Heller, the right protected in the amendment’s operative clause is the individual right to keep and bear arms. The prefatory clause explains the concerns that drove the adoption of the amendment, the right of the people to organize themselves into a militia to resist tyranny even if Congress and supine state governments seek to disarm them.
The formulation of the Second Amendment through a prefatory and an operative clause is unusual among those in the Bill of Rights. But the approach was not uncommon in other settings. The original proposal by James Madison was clearer, but the definition of the right and its distinction from the concerns that gave rise to the amendment are similar: “The right of the people to keep and bear arms shall not be infringed; a well regulated militia being the best security of a free country ….”
Likewise, various state proposals to amend the Constitution followed this structure. Thus, the Virginia convention observed in relevant part on June 27, 1788, “That the people have a right to keep and bear arms; that a well-regulated militia, composed of the body of the people trained to arms, is the proper, natural, and safe defence of a free state; that standing armies, in time of peace, are dangerous to liberty, and therefore ought to be avoided, as far as the circumstances and protection of the community will admit ….” Lest the formulation “the people” suggest only a collective right, that same term was used by the Virginia convention to define the right of the people to freedom of speech and of writing and publishing their sentiments. Yet such a right is clearly one that is exercised individually.
Other state ratifying conventions generally used the same structure for various proposed amendments. The report of the Pennsylvania Minority declared, “That the people have a right to bear arms for the defense of themselves and their own state, or the United States, or for the purpose of killing game; and no law shall be passed for disarming the people or any of them, unless for crimes committed, or real danger of public injury from individuals, and as stranding armies in the time of peace are dangerous to liberty they ought not to be kept up ….” The New York convention urged, “That the People have a right to keep and bear Arms; that a well regulated Militia, including the body of the People capable of bearing Arms, is the proper, natural and safe defence of a free State ….” [Emphasis in the original.]
What if there were no Second Amendment? Ultimately, that would make no difference. The right to life and self-defense is a fundamental or natural right conferred not by the Constitution as a matter of political grace but, in the language of the Declaration of Independence, by the Creator. It is a long-recognized right inherent in each human that even as fervent an apologist for powerful government as Thomas Hobbes accepted. As to the right to defend the community by organizing a militia, that is exactly what the colonists did at Lexington and Concord when the British sent a military force to seize American weapons. It was this engagement that started the Revolutionary War and led directly to the Declaration of Independence with its endorsement of armed resistance to tyrannical government.
The Supreme Court has embraced this reasoning as to state and local laws in cases such as McDonald v. Chicago. After all, the Second Amendment, like the rest of the Bill of Rights, only applies to the federal government. States and cities are, however, limited by the Fourteenth Amendment, which includes protection against legislative violation of fundamental rights of life, liberty, and property. The rights to individual and collective self-defense, including the right to keep and bear arms and the right to organize a militia, are integral to all three.
Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.
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Principle of One Nation Under God
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 30: Principle of One Nation Under God – Guest Essayist: Gary Porter, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary PorterEssay Read By Constituting America Founder, Actress Janine Turner
“One nation, under God, indivisible, with liberty and justice for all.”[i]
As most Americans know, our pledge to the American flag concludes with those words; where did that phrase come from?
We owe a minister named Francis Bellamy for the original inspiration for our pledge. Bellamy went to work for a Boston-based magazine: Youth’s Companion[ii] which was published from 1827–1929, an impressive 102-year run. Bellamy’s pledge was not exactly what we recite today: it originally read “my flag” without saying whose or what nation’s flag was the object of the pledge. That was rectified in 1932 when “of the United States of America” was substituted.
The phrase “under God” was added in 1954 by an act of Congress[iii] at the urging of President Dwight D. Eisenhower, who was responding to citizen petitions.
Is America in fact “one nation under God?” Well, certainly we are – in one respect we cannot not be; the sovereign God overlooks our affairs whether we would like Him to or not, whether we acknowledge his presence or not, whether we worship Him or ignore Him. In that sense the phrase is true and will always be true. But let’s pick the phrase apart a bit.
There is disagreement on this point today,[iv] some arguing that America is a country and/or a federation or union of sovereign states, and not a nation. Some point to the fact that the word “union” appears six times in the Constitution; “foreign nations” and “the law of nations” are the only use of the word “nation” and neither refers directly to the United States. But the evidence is strong that the most prominent of America’s Founding Fathers considered us a true nation.
After the Constitution went into effect with the ninth ratification, various Founding Fathers did refer to “the Union” in speeches and letters, but they frequently used the word “nation” as well.
Alexander Hamilton compared us with “other nations” almost incessantly as Washington’s Secretary of State. But his boss used the word nearly as much. In fact, George Washington can rightfully be called one of the strongest nationalists of the founding era.
Even before the Constitution was ratified, Washington, as a private citizen albeit a celebrated one, wrote a circular letter to the Governors of the several states. He ended the letter by stating:
“I now make it my earnest prayer, that God would have you, and the State over which you preside, in his holy protection; that he would incline the hearts of the citizens to cultivate a spirit of subordination and obedience to Government; to entertain a brotherly affection and love for one another, for their fellow citizens of the United States at large; and, particularly, for their brethren who have served in the field; and finally, that he would most graciously be pleased to dispose us all to do justice, to love mercy, and to demean ourselves with that charity, humility, and pacifick temper of the mind, which were the characteristicks of the divine Author of our blessed religion; without an humble imitation of whose example, …, we can never hope to be a happy Nation.”[v]
In his first inaugural address, drafted by his friend and new Congressman, James Madison, Washington said:
“No People can be bound to acknowledge and adore the invisible hand, which conducts the Affairs of men more than the People of the United States. Every step, by which they have advanced to the character of an independent nation, seems to have been distinguished by some token of providential agency.”[vi]
In his first Thanksgiving Proclamation as President, Washington began by insisting that “it is the duty of all Nations to acknowledge the providence of Almighty God, to obey his will, to be grateful for his benefits, and humbly to implore his protection and favors.” Wouldn’t it be fitting and proper to read President Washington’s Thanksgiving proclamation each year at church on that holiday?
To a Jewish congregation in Savannah, Georgia, President Washington wrote:
that Jehovah God, who had delivered the Hebrews from their Egyptian Oppressors … has been conspicuous in establishing these United States as an independent Nation.”[vii]
James Madison called us a nation;[viii] Thomas Jefferson,[ix] James Wilson,[x] John Adams and John Jay[xi] did as well.
There is no doubt America’s Founding Fathers viewed us as “a nation under God;” and for them, that meant the God of the Bible. Donald Lutz, professor of political science at the University of Houston, reports: “Scholars in recent years seem to have forgotten the degree to which religious ideas permeated the political world of the seventeenth and eighteenth centuries.”[xii]
Carl Sandburg, a Pulitzer Prize winning poet and author, once wrote: “When a nation goes down, or a society perishes, one condition may always be found; they forgot where they came from. They lost sight of what had brought them along.”[xiii]
I’ll conclude with the words of Ronald Reagan, who said: “If we ever forget we are one nation under God, we will be a nation gone under.”[xiv]
The United States can never be a nation that is not “under God.” We can either be a nation that acknowledges that fact and seeks God’s superintending care, one that humbly asks God to heal our land,[xv] or we can be a nation that insists on going it alone. The choice is ours.
Gary Porter is Executive Director of the Constitution Leadership Initiative (CLI), a project to promote a better understanding of the U.S. Constitution by the American people. CLI provides seminars on the Constitution, including one for young people utilizing “Our Constitution Rocks” as the text. Gary presents talks on various Constitutional topics, writes periodic essays published on several different websites, and appears in period costume as James Madison, explaining to public and private school students “his” (i.e., Madison’s) role in the creation of the Bill of Rights and the Constitution. Gary can be reached at gary@constitutionleadership.org, on Facebook or Twitter (@constitutionled).
[i] https://www.ushistory.org/documents/pledge.htm.
[ii] http://youthscompanion.com/.
[iii] https://uscode.house.gov/view.xhtml?req=granuleid:USC-prelim-title4-section4&num=0&edition=prelim.
[iv] https://mises.org/wire/united-states-not-nation-problem-national-conservatism
[v] https://founders.archives.gov/documents/Washington/99-01-02-11404.
[vi] https://teachingamericanhistory.org/document/first-inaugural-address-gw/.
[vii] https://founders.archives.gov/documents/Washington/05-05-02-0279.
[viii] James Madison, Federalist #46: “Besides the advantage of being armed, which the Americans possess over the people of almost every other nation, the existence of subordinate governments, to which the people are attached, and by which the militia officers are appointed, forms a barrier against the enterprises of ambition, more insurmountable than any which a simple government of any form can admit of.”
[ix] Thomas Jefferson, Notes in the State of Virginia: “God who gave us life gave us liberty. And can the liberties of a nation be thought secure when we have removed their only firm basis, a conviction in the minds of the people that these liberties are a gift from God? That they are not to be violated but with His wrath? Indeed I tremble for my country when I reflect that God is just, and that His justice cannot sleep forever.”
[x] James Wilson, Remarks at the Pennsylvania Ratifying Convention, November 26, 1787: “Governments, in general, have been the result of force, of fraud, and accident. After a period of 6,000 years has elapsed since the creation, the United States exhibit to the world the first instance…of a nation…assembling voluntarily…and deciding calmly concerning that system of government under which they would wish that they and their posterity should live.”
[xi] John Jay, Federalists #2: “As a nation we have made peace and war; as a nation we have vanquished our common enemies; as a nation we have formed alliances, and made treaties, and entered into various compacts and conventions with foreign states.”
[xii] Donald S. Lutz and Jack Warren, A Covenanted People; The Religious Tradition and the Origins of American Constitutionalism. 1987.
[xiii] https://www.brainyquote.com/quotes/carl_sandburg_400796.
[xiv] https://www.reaganlibrary.gov/archives/speech/remarks-ecumenical-prayer-breakfast-dallas-texas.
[xv] See: 2 Chronicles 7:14.
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Principle of Establishing Justice Through the Rule of Law
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 44: Principle of Establishing Justice Through the Rule of Law – Guest Essayist: Joerg Knipprath, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read By Constituting America Founder, Actress Janine Turner
The principle of establishing justice through the rule of law is a means of guarding against gradual erosion of law and order into chaos to break down America’s system of self-governing. It guards against eventually ushering in tyranny to control the people rather than protect liberty by protecting the rule of law.
“…you seem…to consider the judges as the ultimate arbiters of all constitutional questions: a very dangerous doctrine indeed and one which would place us under the despotism of an Oligarchy. our judges are as honest as other men, and not more so. they have, with others, the same passions for party, for power, and the privileges of their corps. their maxim is ‘boni judicis est ampliare jurisdictionem,’ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective controul. the constitution has erected no such single tribunal knowing that, to whatever hands confided, with the corruptions of time & party it’s members would become despots.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.
The quoted passage by Thomas Jefferson addresses an issue that has been a repeated topic of controversy since the United States Constitution was proposed to the state conventions, namely, the role of the unelected federal courts in a system grounded in popular consent and self- government. Courts are supposed to apply the law prescribed by the people’s representatives but not be swayed by popular opinion in particular cases. An independent judiciary long has been recognized in Western constitutionalism as a fundamental component of any political system which takes seriously the individual liberties of its citizens. In ordinary criminal cases or civil suits the role of the courts as guardians of individual rights and as dispassionate decision-makers is indisputable. In cases of constitutional law and judicial review of the constitutionality of the acts of elected officials, the matter becomes more ambiguous.
Such cases are inherently political in that they present a challenge to self-government and call into question the particular competence of judges to resolve them. True, some topics, such as foreign affairs, are more political than others, such as specific guarantees of individual rights. But, as has been noted by various writers, each time a court strikes down a law, that action can be seen as a blow against self-government. When the Supreme Court decides a constitutional law case, the holding affects the entire country, not just the specific litigants. Moreover, those litigants often do not represent the opinions of a popular majority on the issue. To be consistent with the fundamental republican principle of majority rule, should unelected courts be making such decisions at all, then?
Abraham Lincoln made the point succinctly in his first inaugural address when he pledged non-interference with the specific decision in the Dred Scott case about Scott’s inability to sue for his freedom but also declared, “At the same time, the candid citizens must confess that if the policy of the government upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties, in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” Clearly, our constitutional system has decided that judges ordinarily should make such decisions, but the inherent contradictions among first principles created thereby do not disappear.
Republican government is premised on the idea that the people, or some portion thereof deemed sufficiently qualified, decide the important public matters. Unlike in a democracy, they do so through representatives selected by them directly or, in the original design for the Senate and the President, more circuitously. Should a 5-4 majority of the unelected Supreme Court effectively have the final word, or should a majority of the people’s representatives have the power to override the Court’s holding on the matter? This is a particular problem in that the Supreme Court is selected from a very small class in society, an elite whose cultural and political values differ sharply from those of the American people as a whole. Should federal judges be elected, rather than appointed? Indeed, considering the classic republican principle that the greater the power, the shorter the term in office in order to avoid oligarchic control, should federal judges serve very short terms before returning to their ordinary stations in life? In turn, would such alternatives adequately preserve the necessary independence of judges?
All these questions were raised by various Anti-federalist writers during the debate over the adoption of the Constitution. The potential life tenure of federal judges was a glaring red flag for critics of the proposed charter. As a textual matter, the Constitution fixes their tenure by “good behavior,” but that ambiguous concept itself was tied to the practice of impeachment. Because impeachment in England had come to be seen as a limited tool requiring something more than political disagreement or general unpopularity, the Constitution expressly provided specific, and quite restricted, grounds for removal of officers by that method, effectively creating “life tenure.” But Antifederalist attacks on the federal courts were not limited to the issue of life tenure. Although the Constitution is silent on the matter, the opponents soon focused on the perceived ability of the Supreme Court to sit in judgment of the constitutionality of the actions of the people’s representative in Congress and the state legislatures.
A very sophisticated attack on the Supreme Court appeared in 1787 and 1788 in various essays of Brutus, one of two pen names generally attributed to the New York judge, and eventual state chief justice, Robert Yates. Yates had been selected as one of New York’s three delegates to the Philadelphia Convention but, along with Judge John Lansing, Jr., had left that assembly early because he objected to the nationalizing tendencies he saw in the emerging draft. His essays were authoritative during the debates in the critical New York ratifying convention.
In Essay No. 11, published January 11, 1788, Brutus observed that Article III, Section 2, of the Constitution vests the power to determine all questions that may arise under the Constitution. He questioned whether that power would be used for the general good. He explained his concerns, “[I[n their decisions, they will not confine themselves to any fixed or established rules, but will determine, according to what appears to them, the reason and spirit of the constitution. The opinions of the supreme court, whatever they may be, will have the force of law; because there is no power provided in the constitution, that can correct their errors, or controul their adjudications. From this court there is no appeal. And I conceive the legislature themselves, cannot set aside a judgment of this court, because they [the judges] are authorised by the constitution to decide in the last resort.”
Brutus worried that the federal courts would interpret the Constitution’s often ambiguous language broadly in favor of the general government to the eventual “subversion of the legislative, executive, and judicial powers of the individual states.” Applying the history of the English court of exchequer, he charged that the courts would extend their jurisdiction and influence well beyond that understood at their creation. “Every body of men invested with office are tenacious of power; they feel interested, and hence it has become a kind of maxim, to hand down their offices, with all its rights and privileges, unimpaired to their successors; the same principle will influence them to extend their power, and increase their rights; this of itself will operate strongly upon the courts to give such a meaning to the constitution in all cases where it can possibly be done, as will enlarge the sphere of their own authority. Every extension of the power of the general legislature, as well as of the judicial powers, will increase the powers of the courts; and the dignity and importance of the judges, will be in proportion to the extent and magnitude of the powers they exercise. I add, it is highly probable the emolument of the judges will be increased, with the increase of the business they will have to transact and its importance.”
In Essay No. 15, published March 20, 1788, Brutus again addressed the danger to the people’s liberty and to the existence of the state governments from the lack of any control over the constitutional rulings of the Supreme Court. “There is no power above them, to controul any of their decisions. There is no authority that can remove them, and they cannot be controuled by the laws of the legislature. In short, they are independent of the people, of the legislature, and of every power under heaven. Men placed in this situation will generally soon feel themselves independent of heaven itself.”
For Brutus, the solution would have been to make such Supreme Court rulings subject to review by the legislature, much as English court holdings often were subject to review by the House of Lords. “Had the construction of the constitution been left with the legislature, they would have explained it at their peril; if they exceed their powers, or sought to find, in the spirit of the constitution, more than was expressed in the letter, the people from whom they derived their power could remove them [through elections], and do themselves right; … A constitution is a compact of a people with their rulers; if the rulers break the compact, the people have a right and ought to remove them and do themselves justice; but in order to enable them to do this with the greater facility, those whom the people chuse at stated periods, should have the power in the last resort to determine the sense of the compact; if they determine contrary to the understanding of the people, an appeal will lie to the people at the period when the rulers are to be elected, and they will have it in their power to remedy the evil; but when this power is lodged in the hands of men independent of the people, and of their representatives, and who are not, constitutionally, accountable for their opinions, no way is left to controul them but with a high hand and an outstretched arm.” [Emphasis in the original.]
The convincing effect those and similar other critical essays Yates wrote had on New Yorkers finally prompted Alexander Hamilton to write a response published on May 28, 1788, just ahead of the meeting of the New York ratifying convention on June 17. Essay No. 78 of The Federalist is among the longest of the papers and the one most frequently cited by the Supreme Court. Hamilton agreed with Yates that the federal courts would interpret the Constitution, because the Constitution being law, it “is the proper and peculiar province” of them to do so. Because judges owed their powers to the Constitution, just as did the legislators, the courts would, and must, disregard statutes which conflicted with the fundamental law of the Constitution. Hamilton dismissed Yates’s contention that this implied a superiority of the judicial branch, claiming instead that “[I]t is far more rational to suppose that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority.” Thus, Hamilton laid the groundwork for an independent federal judiciary in matter of constitutional law.
As his quoted letter attests, Jefferson shared Yates’s concerns and discomfort about the federal courts, especially the Supreme Court’s power of constitutional judicial review. Jefferson believed that the rule of law and the fundamental structure of a government of divided powers created under the Constitution was best served under a “departmental theory” of final authority. While the Supreme Court might have the final say as to how the courts will decide cases, their opinions about the constitutionality of a co-equal branch’s acts, although entitled to respect, were not binding on those other branches. The remark from Lincoln’s first inaugural speech, quoted above, is an application of that theory. So is the admonition, perhaps apocryphal, attributed to President Andrew Jackson on the occasion of an unpopular opinion by Chief Justice John Marshall in Worcester v. Georgia, “John Marshall has made his decision, now let him enforce it.”
Hamilton was not insensitive to such criticisms in his essay. He adamantly insisted that the judges’ life tenure was necessary to preserve their independence. Still, the scope of the courts’ constitutional judicial review must be limited. He wrote, “To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them; …” The rule of law demands that such rules be clear and constant, knowable, and predictably applied. This was particularly important with the Constitution, which was “law” because it was written. Therefore, it was the letter of the document, not some vague notion of its “spirit” that the courts must apply, lest their opinions become exercises of “WILL instead of JUDGMENT,” which would merely be the “substitution of their pleasure to that of the legislative body.” [Emphasis in the original.]
Moreover, courts could disregard only those statutes which were clearly unconstitutional.
“If there should happen to be an irreconcilable variance between the two [a statute and the Constitution], 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.” Using tortuous arguments to discover theretofore unknown penumbras and emanations from constitutional language, or investing that language with personal notions of good policy or better morality would not suffice.
Finally, Hamilton laid down a crucial limitation by specifying the object of constitutional judicial review. Judges must be independent and zealous protectors of liberty rooted in law. But there was a limit to judicial independence, lest it become itself a threat to republican rule. “This independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors [tempers], which the arts of designing men or the influence of particular conjunctures sometimes disseminate among the people themselves; and which, though they speedily give place to better information and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community.” Judicial review was to be conservative, in the sense of protecting the received constitutional order from the excesses of momentary popular passions as well as from “the cabals of the representative body.” That, too, is consistent with the order provided by the rule of law. It is also consistent with republican self-government, as it merely seeks to slow down a heedless rush to action by allowing for further reflection and the triumph of reason.
What is not consistent with republican self-government and legitimate Hamiltonian judicial review is when the judiciary assumes the role of constitutional innovator. For example, when the Supreme Court abruptly overturns long-settled and widespread laws that affect basic institutions of society or traditional social relations, the justices are exercising independence. But they are not guarding the liberty of individuals or political minorities from temporary majoritarian passion. They are, in effect, amending the Constitution by a simple majority vote of one branch of government composed of a few members enjoying life tenure, the branch that has no accountability to the public and is drawn from a very small elite. That is consistent with neither the stability and predictability associated with the rule of law nor republican self- government. In taking such actions, the Court assumes the role of a constitutional convention.
Relying on the postulate of popular sovereignty, Hamilton, Madison, and other supporters of the Constitution emphasized as a first principle the people’s right to change their constitutions at any time and for any reason. Such innovations should not be undertaken lightly, and at least as codified in Article V of the Constitution, require a difficult super-majoritarian process involving multiple governmental bodies, radically different from judicial constitutional amendment by a 5-4 vote.
There is much to admire in a culture which has preserved for so long an independent judiciary within its constitutional structure. One hopes that this remains the norm, and that voices who have suddenly now discovered a political advantage from changing the rules of the game will go unheard. The Supreme Court has warranted the respect it has enjoyed overall as an institution, because in most cases the justices have performed their roles with wisdom and sagacity. But they are political actors, and their judgment has not been infallible. To preserve that respect and the independence required to counteract majoritarian passions when the need arises, the Court is well-advised to stay true to its role as the guardian of the rule of law and the received Constitution, not as a constitutional lawgiver leading a compliant people.
Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.
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Principle of Representative Government Only Under Authority of the American People
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Eric Wise Essay 60: Principle of Representative Government Only Under Authority of the American People – Guest Essayist: J. Eric Wise, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Eric WiseEssay Read By Constituting America Founder, Actress Janine Turner
Almost 250 years ago, on December 16, 1773, American colonists dressed as Mohawk Indians dumped tea into Boston Harbor protesting under a rallying cry of “No taxation without representation.” We call this the Boston Tea Party.
23 years ago, in May of 2000 Washington, D.C. changed the design of its license plates replacing the words “Discover and Celebrate” with “Taxation Without Representation.” This memorialized D.C. residents’ grievance that they have no voting representatives in Congress.
Suffice it to say, the principle of representation is an enduring opinion that is at the heart of what it means to be an American. But like many such opinions that spring from what Abraham Lincoln called “the mystic chords of memory” does anyone really know, concretely, what it means?
To understand, perhaps it helps to think about concepts of sovereignty. For the most part after the end of the Roman Republic most of Europe was ruled by kings or emperors. They ruled on a religious, revealed, and practical basis known as divine right of kings.
Derived from the Bible and history, divine right of kings relied on the authority of Abraham over his children, the authority of anointed kings beginning with Saul and David, and the authority of Caesar over Rome and its dominions. A single person embodies the sovereign for subjects, and that person’s authority comes down from divinely sanctioned anointing, according to hereditary rules and conquest.
The Scottish protested the oppressions of the English king, Edward II. In the Declaration of Arbroath, the Scottish appealed to their own divine right of kings through conquest.
“The Britons they first drove out, the Picts they utterly destroyed, and, even though very often assailed by the Norwegians, the Danes and the English, they took possession of that home with many victories and untold efforts.”
Contradictions aside, that was how most of Europe thought about the question of just government.
But did this mean they had no representation? To the contrary, when the English nobles at Runnymede in 1215 forced the king to sign the Magna Carta, representation in parliament became part of the English system of government though that system remained clearly under the notion of the divine right of kings. The French, whose monarchy was more absolute, had the Estates General, beginning in 1302 A.D. The German principalities of the Holy Roman Empire had the Imperial diet, as early as 777 A.D.
If there is any doubt about the compatibility of divine right of kings and representation note that the Mayflower Compact, organized to authorize the colonial pilgrims to frame “just and equal laws,” begins with the identification of the signers as “the loyal subjects of our dread sovereign Lord King James.”
But compatibility is not the same thing as perfection, and at some point after the Protestant Reformation, new ideas about the authority of men over their conscience in the concept of the “priesthood of every believer” [presbyterii fidelium] led to new ideas about the authority of men over their own government.
In Connecticut, in the 1600s, the Reverend Thomas Hooker established in his sermons consent as the basis of government rather than divine right of kings. “The foundation of authority is laid firstly in the free consent of people,” he propounded from the pulpit. And in 1639, he drafted the Fundamental Orders governing Windsor, Hartford and Wethersfield, the first charter government in the New World that did not appeal to the authority of a king for its basis in justice. Reverend John Wise of Massachusetts would preach and protest in 1687 against the imposition of taxation without representation. President Calvin Coolidge would later praise Reverend John Wise as an inspiration of the Declaration of Independence.
One should observe that the positions of Hooker preceded Thomas Hobbes’ theoretical writing on consent in Leviathan by more than 11 years, and John Locke’s theoretical writing on consent in Two Treatises by 50 years. Should anyone tell you the foundations of American notions of consent were dreamed up by theoreticians or first came to mind in 1776, correct them. Theory backfilled the practice and ethos that had taken root and was growing in America from the very start.
By the time the American Revolution rolled up on the English, Americans had been thinking about government and justice in terms of consent for more than 100 years. The Declaration of Independence reiterated and memorialized this, stating “Governments are instituted among Men, deriving their just powers from the consent of the governed.”
But consent requires renewal, and this implied that the practice of the colonists of electing their representatives would continue under the new forms of government of the new nation. Every election is a reflection of the principle of consent, which is not just compatible with consent but a microcosm of a broader conception of the universe. God chooses us; we choose our form of government; we choose to renew it through amendment of its form; we choose our representatives in our form of government.
J. Eric Wise is a partner in the law firm of Alston & Bird.
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Principle of Free, Fair, Independent Elections Involving Preservation of the Electoral College
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Tara Ross Essay 59: Principle of Free, Fair, Independent Elections Involving Preservation of the Electoral College – Guest Essayist: Tara Ross, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tara RossEssay Read by Constituting America Founder, Actress Janine Turner
“[The President] will, under this Constitution, be placed in office as the President of the whole Union, and will be chosen in such a manner that he may be justly styled the man of the people.” – James Wilson, Speech at the Pennsylvania Ratifying Convention (December 4, 1787).
“It was also peculiarly desirable, to afford as little opportunity as possible to tumult and disorder. This evil was not least to be dreaded in the election of a magistrate, who was to have so important an agency in the administration of the government, as the president of the United States.” – Alexander Hamilton, Federalist No. 68
America’s founding generation gets a bad rap these days, and the presidential election system they created, if anything, receives even less respect.
News outlets blast the Electoral College as “terrible, skewed, [and] anachronistic.” The system was allegedly created because of slavery, one prominent critic writes, and it was intended to “help one group—white Southern males.” Others claim the system is anti-democratic, created by aristocratic white men who wanted to dilute the voices of the masses because they believed “ordinary citizens . . . too poorly informed to choose wisely.”
To listen to these critics, free and fair presidential elections will not exist until the Electoral College is eliminated, replaced by a national popular vote.
Except none of it is true. The reality is that the delegates to the Constitutional Convention strove to design a system that would accurately reflect the will of the people, knowing that the new United States government would be a miserable failure if the people’s voice was not expressed at election-time.
George Mason, delegate from Virginia, emphasized that “the genius of the people must be consulted.” Pennsylvania delegate James Wilson agreed that “[n]o government could long subsist without the confidence of the people.” Governmental authority, he concluded, must “flow immediately from the legitimate source of all authority. . . the mind or sense of the people at large. The Legislature ought to be the most exact transcript of the whole Society.”
This sentiment was just as strong when it came to election of the President.
“It was desireable, that the sense of the people should operate in the choice of the person to whom so important a trust was to be confided,” Alexander Hamilton concluded.
Yet what does it mean to reflect the “sense of the people” in a nation composed of both large and small states, as well as many religions, industries, and subcultures? How can both rural and urban areas be represented? The questions are difficult. After all, the President is the only elected official expected to represent every single American, from every walk of life, simultaneously.
A simple national popular vote for President would be too easily manipulated, the delegates to the Convention concluded, ensuring that large states and heavily populated areas are over-represented while small states are ignored.
“An Election by the people [is] liable to the most obvious & striking objections,” Charles Pinckney of South Carolina observed. “They will be led by a few active & designing men. The most populous States by combining in favor of the same individual will be able to carry their points.” Roger Sherman, delegate from Connecticut, echoed this concern: “[The people] will generally vote for some man in their own State, and the largest State will have the best chance for the appointment.”
The Founders knew that a unique presidential election process would be needed to reflect the “sense of the people” in such a large, diverse country. Thus, they created our Electoral College: Its state-by-state election process requires presidential candidates to obtain more than just a simple majority, too heavily focused on one part of the country. Instead, candidates must obtain cross-regional support and federal majorities to win.
“[The President] is now to be elected by the people,” James Madison concluded. James Wilson, delegate from Pennsylvania, agreed that the President “will, under this Constitution, be placed in office as the President of the whole Union, and will be chosen in such a manner that he may be justly styled the man of the people.”
It’s an important point: The Electoral College seeks the fairest solution for the whole Union, not merely one part of it.
The Electoral College supports the principle of fair and free elections in a second way that often goes unnoticed. The system minimizes fraud and provides “as little opportunity as possible to tumult and disorder,” as Alexander Hamilton wrote.
Because of its state-by-state structure, the Electoral College typically produces quick and undisputed outcomes. When problems do occur, they are isolated to one or a handful of states, where they can be more easily resolved. Fraud is minimized because it is hard to predict where stolen votes will matter.
The election of 2020 proved—again—the ability of the Electoral College to provide stability when chaos threatens to reign. Because of the system, problems were isolated to a few states such as Michigan, Pennsylvania, and Wisconsin. Moreover, problematic areas such as Detroit and Philadelphia were highlighted.
Such transparency would not have occurred without the Electoral College. In a national popular vote system, local difficulties could have been glossed over, lost in the glare of the large 7-million national popular vote margin. As things stand today, however, state legislators have an opportunity to investigate and fix local problems, as needed.
An American historian once described the Founders’ conclusions about their presidential election system: “[F]or of all things done in the convention,” Max Farrand wrote, in his book, The Framing of the Constitution of the United States (2022), “the members seemed to have been prouder of that than of any other, and they seemed to regard it as having solved the problem for any country of how to choose a chief magistrate.”
Indeed, the Electoral College has done more to protect fair and free elections in America than the Founders could possibly have imagined.
Tara Ross is a retired lawyer and the author of several books about the Electoral College, including Why We Need the Electoral College (Regnery Gateway).
Principle of Republican and Limited Form of Government, Representative Through American Citizens Voting in Free and Frequent Elections
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 58: Principle of Republican and Limited Form of Government, Representative Through American Citizens Voting in Free and Frequent Elections – Guest Essayist: Joerg Knipprath, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read by Constituting America Founder, Janine Turner
“There are however some things deducible from reason, and evidenced by experience, that serve to guide our decision upon the case. The one is never to invest any individual with extraordinary power; for besides his being tempted to misuse it, it will excite contention and commotion in the nation for the office. Secondly, never to invest power long in the hands of any number of individuals. The inconveniences that may be supposed to accompany frequent changes are less to be feared than the danger that arises from long continuance.” – Thomas Paine, Dissertation on First Principles of Government, 1795.
Advocates of republican systems long have insisted on certain features in a government to qualify it as a republic. Among those are the right to vote vested in a variable, yet sufficiently substantial, portion of adult residents, the election of the important figures in government, regular elections, short terms for those elected, rotation in office through restrictions on re-election, and the right of voters to recall elected officials. The objectives of these conditions are to keep the governing members responsive to the people’s wishes, to promote fresh blood in positions of authority, and to allow more persons to participate in governing, thereby bestowing legitimacy on the system even in the eyes of those who may lose a particular political contest.
The opponents of the United States Constitution found much to criticize in what they saw as the deficient republicanism of the proposed charter. Colonial practice had been annual or even semi-annual terms for legislators. Early state practice generally continued that tradition, although some permitted longer terms for the upper house of a bicameral legislature. Annual or biennial terms became the norm for governors. For example, the Massachusetts Constitution of 1780 provided that the governor, lieutenant governor, and senators and representatives in the state legislature be elected annually. The Virginia constitution of 1776 provided for annual election for the House of Delegates, the lower house of the state legislature, but allowed four-year terms for state senators, the terms ending on a rotating basis, with one-quarter of senate offices up for election each year. The governor was elected annually. He could be re-elected for three terms but then became ineligible for re-election for at least four years.
At the level of the national government, the Articles of Confederation left the precise mode of choosing delegates to the states, but limited their terms in Congress to three years in six. Virginia, for example, chose its delegates to the Confederation Congress anew annually. The Northwest Ordinance of 1787, enacted by the Confederation Congress to govern the Old Northwest territory also required annual election to the territorial legislature.
It is today taken for granted that only citizens might vote. But that was not always the American practice. The Constitution requires citizenship for those elected to either house of Congress and to the Presidency. But there is no similar qualification required for those doing the electing. The Constitution left it to the states to sort out. The Massachusetts Constitution of 1780, for example, discussed voting by “inhabitants” and imposed age, residency, and property qualifications, but not separate citizenship.
Nor was there a lack of awareness of the concept of citizenship versus residency. The Northwest Ordinance provided that voting for territorial representatives was open to two classes: those who were citizens of other states, had resided in the territory for one year, and owned a specified amount of property; and those who were not citizens, but had resided in the territory for three years, and owned the same specified amount of property. The Ordinance made a similar distinction between citizens and non-citizens for candidates for election to the territorial legislature.
States generally allowed non-citizens to vote well into the 19th century to attract immigrants. It is a common trope in historical accounts to write about urban political machines whose operatives at election time waited at the docks to welcome those fresh off the ships from Europe with job opportunities, a small gift, and a voting card filled out in favor of their benefactors. At the level of presidential elections, it was not until the election of 1928 that all states restricted voting to American citizens. Even today, about a dozen municipalities, mostly in Maryland, allow non-citizens to vote in local elections.
While there was no significant debate about citizenship for voting, the length of terms of office was a matter of significant contention at the convention in Philadelphia and in the state ratifying conventions. The Constitution’s supporters tried different approaches to blunt attacks. One was to cherry-pick the length of terms of particular state offices or offices in Great Britain. As to the two-year terms of the House of Representatives, James Madison in No. 53 of The Federalist agreed that there must be frequent elections, but “what particular degree of frequency may be absolutely necessary for the purpose, does not appear to be susceptible of any precise calculation,…” Thus, a range of terms of service reasonably would be sufficiently republican.
To illustrate his point, Madison contrasted the terms of the lower houses of various state legislatures:
If anything, shorter terms were undesirable, in that they encouraged electoral fraud, a concern not unheard of today: “[S]purious elections cannot be investigated and annulled in time for the decision to have its due effect….Hence a very pernicious encouragement is given to the use of unlawful means, for obtaining irregular returns.” It might be added that representatives complain that, even with modern transportation, two-year terms are burdensome because they need to spend so much time campaigning for re-election. It should be noted that these complaints have increased as the members of Congress have become full-time legislators and the size of the government has expanded.
Even if long terms of office might be undesirable as a matter of general consideration, there might be more justification for a longer term in Congress than in state or local legislative councils. National affairs regulated by Congress require greater acquisition of knowledge of complex policies and of the needs of other states. Hence, more time is needed to become sufficiently familiar with these complexities, whereas in a state the laws are uniform and the people and their needs are less diversified. In the end, Madison argued, “the business of federal legislation must continue so far to exceed, both in novelty and difficulty, the legislative business of a single state, as to justify the longer period of service assigned to those who are to transact it.”
The six-year terms for Senators came in for especially harsh criticism. Madison and other Federalists frequently defended the Senate’s long terms on two grounds, the need for a stabilizing influence over the popular passions likely to influence the short-term focus of the more democratic House of Representatives, and the Senate’s role in the potentially complex matters of foreign relations. After a brief attempt to analogize the terms of office of United States Senators to the five-year terms of senators in the state of Maryland, Madison in Essay No. 63 of The Federalist emphasized the role of the Senate as a stabilizing influence on the House of Representatives both by taking a “longer” view on policy and because of the “propensity of all single and numerous assemblies, to yield to the impulse of sudden and violent passions, and to be seduced by factious leaders into intemperate and pernicious resolutions.” As well, there was the Senate’s function in foreign affairs which required sophistication, wisdom, and knowledge. Moreover, longer terms gave that body the stability to provide a “national character” needed for the United States to be effective in dealings with foreign nations.
The critics were not convinced. Even moderate opponents saw the Senate’s terms as dangerous. In Essay of Brutus No. 16 of April 10, 1788, the New Yorker Robert Yates agreed that the Senate’s stabilizing role and its tasks in foreign affairs required longer terms than those of the typical state legislature or of the House of Representatives. Yates also agreed that the Senate was to represent the country’s “natural” aristocracy. But the danger to republicanism remained. “Men that hold office for long become detached from their constituents.” This is especially a problem with the Senate, as “they will for the most part of the time be absent from the state they represent, and associate with such company as will possess very little of the feelings of the middling class of people. For it is to be remembered that there is to be a federal city, and the inhabitants of it will be the great and the mighty of the earth.” [Emphasis in original.]
The solution for Yates and for his fellow New York Anti-federalist Melancton Smith, writing as The Federal Farmer, was to reduce the term to four years. In addition, there must be rotation in office—Yates proposed a limit of three terns for Senators—and recall as existed in the Articles of Confederation. Otherwise, the reality will be that Senators will be reelected over and over for life, due to the influence of their “friends.” “Everybody acquainted with public affairs knows how difficult it is to remove from office a person who is long been in it. It is seldom done except in cases of gross misconduct. It is rare that want of competent ability procures it.”
The concerns of the Constitution’s critics found their way into proposals for reform even as the states approved the new plan of government. Among the list of proposed amendments from the Virginia convention sent on June 27, 1788, was one that called for rotation in office as a very useful tool to limit the potential threat to the people’s liberty from an entrenched political class: So that members of legislative and executive branches “may be restrained from oppression by feeling and participating the public burdens, they should, at fixed periods, be reduced to a private station, return into the mass of the people, and the vacancies be supplied by certain and regular elections,…”
None of the proposals have been adopted. Senate terms are still six years. There is no rotation in office, and an attempt by the people of Arkansas to provide “term limits” for members of both houses of Congress elected in Arkansas was struck down as unconstitutional by the United States Supreme Court. Likewise, an attempt by people in New Jersey even to collect signatures to allow a recall vote for a Senator was blocked by the state supreme court as unconstitutional. Meanwhile, members of Congress, especially Senators, generally hold office for decades, often until death. It is common for them to be “absent from the state they represent.” They live in the “federal city,” returning to their states only at election time. The environs of the District of Columbia include the wealthiest areas of the United States, so it may also be rightly said that they associate with “the great and mighty of the earth,” who “possess very little of the feelings of the middling class of people.”
Joerg W. Knipprath is an expert on constitutional law, and member of the Southwestern Law School faculty. Professor Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow.
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Principle of No Passage, Federal or State, of Ex Post Facto Laws
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 57: Principle of No Passage, Federal or State, of Ex Post Facto Laws – Guest Essayist: Joerg Knipprath, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathEssay Read by Constituting America Founder, Janine Turner
The Framers of the United States Constitution considered ex post facto laws and bills of attainder so repugnant to justice that the document expressly bans them twice. In Artic