Guest Essayist: David B. Kopel
In 1949, after more than 20 years of fighting, the Chinese Communist Party overthrew the Republic of China. The party’s chairman, Mao Zedong, became dictator, and ruled until his death in 1976. Mao’s regime was the most murderous in history. His regime killed over 86 million people—more than Hitler and Stalin combined.
In 1966 Mao initiated “The Great Proletarian Cultural Revolution.” It started as a campaign against the more pragmatic elements of the Chinese Communist Party—such as leaders who a few years before had forced Mao to retreat from an agricultural collectivization program, the Great Leap Forward, that had caused the deadliest famine ever.
Incited by Mao, the Cultural Revolution began with the most privileged students—the children of the top communist party officials—at the top universities. They rioted, rampaged, and looted, first on-campus and then beyond. They started by killing or torturing teachers, and then moved on to the general public. Soon, the rage mobs of ultra-Maoists spread nationwide. Anyone’s home could be invaded and looted, and anyone could be murdered or tortured. The police were forbidden to interfere—or even to fight back when the mobs assaulted the police.
As the Cultural Revolution continued, things got even worse. The Cultural Revolution ended only when Mao died.
The Americans who created the United States Constitution could not know about the tyrants who would arise in the twentieth century. They did know of bad men who had tried to seize absolute power, such as Julius Caesar in the Roman Republic, or King James II of England. Yet the worst of English kings or Roman emperors were mild in comparison to the totalitarian Mao regime.
The American “people did not establish primarily a utility-maximizing constitution, but rather a tyranny-minimizing one.” Rebecca I. Brown, Accountability, Liberty, and the Constitution, 98 Columbia Law Review 531, 570 (1998). This essay describes some of the provisions of the U.S. Constitution that aim to thwart absolutism and totalitarianism. The information about China under Mao is based on David B. Kopel, The Party Commands the Gun: Mao Zedong’s Arms Policies and Mass Killings, Chapter 19.D.3 in Nicholas J. Johnson, David B. Kopel, George A. Mocsary, E. Gregory Wallace & Donald E. Kilmer, Firearms Law and the Second Amendment: Regulation, Rights and Policy (Aspen Publishers, 3d ed. 2022), pp. 1863-1966. Additional citations are available therein.
The Preamble to the Constitution states:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The principles and the results of the Mao regime were the opposite. For example, starting in 1972-73, the people were ordered to condemn the “reactionary” ideas of Confucius, such as “the people are the foundation of the state,” and “depositing riches in the people.” As described below, the Mao regime cultivated injustice, domestic violence, the welfare of the ruling class at the expense of the people, and the eradication of liberty. The regime did “provide for the common defense” in the sense that China was not invaded in 1949-76, other than in some border clashes with the Soviet Union.
The U.S. Constitution creates three distinct and independent branches of government:
“All legislative powers herein granted shall be vested in a Congress of the United States.” Art. I, §1.
“The executive power shall be vested in a President of the United States of America.” Art. II, §1.
“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Art. III, §1
Under the U.S. Constitution, the three branches of government check and balance each other, as power is set against power. In a communist regime, there are no checks on the party’s will. All political power belongs to the party. Under Mao, “at the top, thirty to forty men made all the major decisions. Their power was personal, fluid, and dependent on their relations with Mao.” Andrew J. Nathan, Foreword, in Li Zhusui, The Private Life of Chairman Mao xi (Tai Hung-Chao trans. 1994).
“The House of Representatives shall be composed of members chosen every second year by the people of the several states.” Senators are to be elected every “six years” and the President every “four years.” Art. I §§2-3; Art. II §1.
There have been no elections since the Chinese Communist Party (CCP) seized power in 1949. Although the party calls the nation it rules the “People’s Republic of China,” the name is a lie. In a “republic” where “the people” rule, the people elect government officials. In the People’s Republic of China, the party rules because the military keeps the party in power. It is reasonable to infer that the CCP knows that if free elections were held, the CCP would lose.
Particular types of “power” are granted to each of the three branches of government. Arts. I §8, II §§2-3, III §2.
The three branches of United States government are granted certain powers by the people. The branches of government may exercise the particular powers expressly granted by the Constitution, as well as some incidental powers that are implied by the express grants. No branch of government, and not even the U.S. government as a whole, has all possible powers.
A communist regime claims unlimited power over everything. Mao acknowledged no legal limit on himself. The practical limit was the difficulty of one man imposing his absolute will on hundreds of millions. The Cultural Revolution was Mao’s method for eliminating everything and everyone that impeded his power.
Congress creates law by passing a “bill,” in compliance with certain procedures. Art. I §7.
The Mao regime was not based on law. As Mao told the very sympathetic American journalist Edgar Snow, “We don’t really know what is meant by law, because we have never paid any attention to it!” Li Cheng-Chung, The Question of Human Rights on China Mainland 12 (1979) (statement to Edgar Snow 1961).
During the 1950s, there were some efforts to create normal legal codes, but these were abandoned once the Great Leap Forward into full communism began in 1958. In contrast to the Hitler regime, which issued many statutes and regulations, the Mao system relied mainly on edicts from the communist leadership, the Party Center. There were many exhortative propaganda campaigns based on slogans.
The party-controlled national newspaper, the People’s Daily, was read to peasants and workers in frequent, mandatory political instruction meetings, which often consumed the rest of the day after work. In effect, the latest article in the People’s Daily was the official source for people to learn how to behave without getting in trouble with the authorities. As different factions within the CCP gained ascendency, the edicts changed frequently. So doing what had been mandatory on Monday could be punished on Friday.
“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Art. I §9.
When a court issues a writ of habeas corpus, whoever is holding an individual prisoner must appear in court and prove to the court that the detention of the prisoner is lawful. In communist regimes, there is no recourse for individuals who are arbitrarily imprisoned or sent to slave labor camps.
Neither the federal government nor the states may enact any “ex post facto law.” Art. I §§9-10.
In other words, a criminal law cannot retrospectively punish an act that was lawful at the time it was committed. Just the opposite under Mao and all communist regimes. For example, in the 1956 Hundred Flowers period, people were encouraged to frankly express their views about perceived shortcomings of the CCP. Later, persons who had done so were imprisoned or sent to slave labor camps.
Likewise, during the first several months of the Cultural Revolution, young people from all over China were given free train tickets to see Chairman Mao speak at mass rallies at Tiananmen Square in Beijing. This was an exception to the normal rule that a person could not travel away from his or her village.
A few years later, when factional politics within the CCP had changed, 3.5 million people who had attended one of the 1966 rallies were given other free tickets: one-way transportation to forced labor in the countryside.
Throughout the Mao era, people were often punished for acts that had been lawful at the time, such as expressing non-communist political opinions in the 1930s.
“The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.” Art. II §1.
The President’s salary and expense accounts are set by Congress. Mao, in contrast, treated himself to whatever he wanted. In Beijing he lived in the former palace of the emperors, with his own private swimming pool and beach. He had fifty more fortified palaces around the country.
The special Giant Mountain (Jushan) farm supplied fine foods daily to the portly Mao and the others at apex of the CCP food chain. When Mao was away from Beijing, which was most of the time, daily airplanes delivered food from Jushan. The élite CCP leadership in the provinces had similar arrangements for special food, while the masses starved.
Mao enjoyed the company of many beautiful young concubines, procured for him by government employees.
During the Cultural Revolution, everyone had to buy a book of his sayings, Quotations from Chairman Mao Zedong, popularly known as “The Little Red Book.” Mao decided that he was entitled to royalties from all the forced book sales, and he became the first millionaire in Communist China.
As explained by a former vice-president of communist Yugoslavia, all communist governments eventually replace the old wealthy class with a new class of reactionary despots. Property that was nationalized in the name of “the people” becomes the property of the most privileged at the top of the inner party, the “all-powerful exploiters and masters.” Milovan Dijilas, New Class: An Analysis of the Communist System 47 (1957). The same point is made in George Orwell’s book Animal Farm (1945).
“The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Art. II §4.
The constitutional system of elections makes a president removable by the people every four years. In addition, a president may be removed during his term if he is impeached by the House and then convicted by the Senate. In 1974, President Richard Nixon resigned when facing certain impeachment and conviction because of his crimes, including the coverup of an attempted burglary, directed by Nixon’s staff, of the Democratic National Committee office at the Watergate office complex.
But there was no way to remove Mao, even when, as in the Great Leap Forward or the Cultural Revolution, the majority of the people, and even the majority of the CCP elite, thought that he was leading the nation into ruin. Like a bad Roman Emperor, Mao could only be removed by force.
In 1971, Mao began plotting to get rid of defense minister Lin Biao. Lin’s son began organizing a coup against Mao. The plan was to bomb Mao’s train in September 1971, when he would be returning from a trip to southern China to shore up support from the army generals there for Mao’s plan to remove Lin.
But Mao, knowing he was widely hated, often changed his travel plans at the last minute, as a security precaution. This time, the last-minute change saved his life. Lin Biao and his family tried to flee to Mongolia, dying in a plane crash on September 13, 1971.
“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.” Art. III §1.
“The trial of all crimes, except in cases of impeachment, shall be by jury.” Art. III §3.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.” Amendment VI.
The U.S. Constitution guarantees the right to jury trial, with fair trial procedures, such as the right to counsel, public proceedings, and the right to cross-examine witnesses. Federal judges hold their positions until they choose to retire, and they cannot be removed for political reasons.
Under Mao, “judicial reform” purged judicial officers and ensured that a puppet judiciary would never err on the side of lenience against dissidents. Courts ceased to exist as independent finders of fact. They became administrative processing units for predetermined sentences. Entirely under the thumb of the CCP, judges merely pronounced the severe sentences that CCP officials had already decided. In cases where the law was not clear, judges were required to follow the Central Party line. According to the CCP official newspaper, People’s Daily, the accused were “presumed to be guilty. . . . Giving the accused the benefit of the doubt is a bourgeois weakness.”
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” Amendment I.
No government-established religion, and free exercise of religion
As soon as the communists seized power, they began suppressing some religious organizations and bringing the rest under state control. Religious organizations could exist only as entities subordinate to and directed by the CCP. Soon, the government began to attempt to exterminate religion entirely. While atheism was the official communist belief, the party recognized that religion made people harder to control, as the faithful recognized a higher power than the CCP.
Today’s China is little different. Tibetan Buddhists, Uighur Muslims, and Falun Gong face the worst persecution. Christian denominations are allowed to exist only as state-controlled entities.
Mao despised religion. When Tibet’s Dalai Lama visited Mao in Beijing in 1954, Mao told him, “I understand you well. But of course, religion is poison. It has two great defects: It undermines the race, and secondly it retards the progress of the country. Tibet and Mongolia have both been poisoned by it.” Dalai Lama, My Land and My People 117-18 (2006).
Mao always wanted to be the center of attention. He didn’t like the Chinese national anthem, March of the Volunteers, which had been adopted by the CCP in 1949. It had originally been a song for people of all political persuasions who fought the Japanese invasion of China of 1933-45. During the Cultural Revolution, Mao put the national anthem author in prison, where he died. Although Mao did not formally change the national anthem, for almost every occasion that the national anthem would be played, Mao made the state media (the only media) instead play a song about him, The East Is Red.
“The East Is Red (Dongfang hong):
From China comes Mao Zedong.
He strives for the people’s happiness,
Hurrah, he is the people’s great saviour!
Chairman Mao loves the people,
He is our guide to building a new China.
Hurrah, lead us forward!”
For schoolchildren, a soon-to-be pervasive new song was composed in 1966: “Father is dear, mother is dear, But not as dear as Chairman Mao.”
Under German regime of the National Socialist German Workers Party (“Nazi” for short), people were required to say “Heil Hitler” rather than “Good morning” or “Hello.” The same became true with “Long Live Chairman Mao”—literally, “Chairman Mao ten thousand years” (Mao zhuxi wansui). One man was executed for saying that Chairman Mao would not actually live ten thousand years.
With Mao’s blessing, the military (the “People’s Liberation Army,” PLA) began establishing a new religion for China. Starting in the latter part of 1967, most nonwork time was taken up by mandatory nightly assemblies where people had to discuss their personal behavior in light of Mao Zedong Thought. Then came the 1968-69 campaign of “Three Loyalties” and “Four Boundless Loves” that everyone was supposed to feel for Chairman Mao.
Statues and shrines of Mao were erected everywhere. Busts or pictures of Mao were mandatory home religious items.
Although there was good money to be made, painters often declined the opportunity to paint a Mao icon, since the artist would be scrutinized and punished for the slightest inadvertent sign of insufficient veneration.
Upon arising in the morning, everyone had to face their home Mao shrine and “ask for instructions.” The day ended with “reporting back in the evening.” Mao replaced the “kitchen god” of Chinese folk culture. In other aspects Mao was portrayed as the sun god.
Life was structured around Mao and his words. Before every meal, people had to say grace: “Long live Chairman Mao and the Chinese Communist Party.”
Maoist life encompassed the body as well as the mind. Instead of normal sports, the new exercise routine was “quotation gymnastics”—a set of group exercises in which participants shouted Mao quotes related to the motions. For example, in the third set of exercises, the leader would yell “political power grows out of the barrel of a gun.” The exercisers would make nine thrusting and stabbing motions with imaginary bayonets.
Even more common were “loyalty dances,” in which individuals or groups stretched their arms to show their “boundless hot love” for Mao, sometimes worshipping him as the sun. The PLA enforcers labeled any nonparticipant in the Mao rites as an “active counterrevolutionary.”
People began reporting miracles such as healing of the sick and attributing them to Mao. Communist temples were erected, based on the historic model of ancestral temples. When buying a Mao item in a store, one could not use the common word for buying, mai; instead one would use the polite verb actress Jiang Qing, previously reserved for the purchase of religious items.
Freedom of speech and freedom of the press
When the communists were fighting to overthrow the Republic, they promised freedom of speech for everyone. As soon the Communists seized power, all nongovernment newspapers were closed.
All radios were confiscated, so no one could hear news from the outside world. The confiscation of radio transmitters ensured that people could not communicate with each other at a distance.
All mail was surveilled, and the contents were put in the secret files that the government kept on everyone.
Once people saw what communist rule was like, many people burned their book collections, because possession of a book—even an apolitical book—that was not based on communist ideology might result in the owner being labeled a “counterrevolutionary” and sent to a slave labor camp.
During the Cultural Revolution, the rage mobs pillaged libraries and burned books in huge outdoor bonfires, reminiscent of similar book burnings in Nazi Germany. The Nazi book burners mainly targeted books by Jewish authors, but Mao’s mobs were more ambitious. Any book that was not communist—such as books of ancient poetry—was put to the torch. Many rare historic manuscripts were destroyed.
Mao’s fourth wife, the former actress Jiang Qing, took a special interest in the performing arts. In China, opera had always been entertainment for the masses (as it was in the United States in the nineteenth century) and not solely for a highly educated audience (as it is in the U.S. today). Madame Mao banned all classical works of performing art. The only works that could be performed were post-1949 “model” pieces of crude communist propaganda. That amounted to five operas, two ballets, and one symphony. In the privacy of her palaces, Madame Mao enjoyed a much broader selection of entertainment, including private screenings of Western movies.
During the Cultural Revolution, simply being educated, or an intellectual, or able to speak a foreign language could be cause enough to be killed, tortured, or put into forced labor.
From about March 1968 to April 1969, even the most mundane conversation had to be centered on Mao. If a peasant walked into a store, the clerk was supposed to say “keep a firm hold on grain and cotton production,” and the peasant would reply “strive for even greater bumper crops.” If the customer was a student, the clerk would say “read Chairman Mao’s books,” and the student would answer “heed Chairman Mao’s words.” As one historian observes, “The Cultural Revolution is perhaps the time in the twentieth century when language was most separated from meaning. . . . If you do not mean what you say, because what you say has no meaning beyond the immediate present, then it is impossible to imbue language with any system of values. . . . This led to the overall moral nullity of the Cultural Revolution during its most manic phase.” Rana Mitter, A Bitter Revolution: China’s Struggle with the Modern World 209 (2004).
Or as George Orwell wrote about a fictional totalitarian government very similar to communism, “The intention was to make speech, and especially speech on any subject not ideologically neutral, as nearly as possible independent of consciousness.” George Orwell, Appendix: The Principles of Newspeak, in 1984 (1990) (1949).
Right to petition the government for redress of grievances
Of course there was no such right in Mao’s China, especially during the Cultural Revolution. Sending the government a critical petition would lead to every signer being imprisoned, tortured, sent to slave labor camp, or executed.
At the beginning of the Cultural Revolution, Wang Rongfen, who was studying German at the Foreign Languages Institute, observed the similarities between Mao’s first Cultural Revolution rally for a crowd at Tiananmen Square and Hitler Nuremberg rallies. She sent Chairman Mao a letter: “the Cultural Revolution is not a mass movement. It is one man with a gun manipulating the people.” He sent her to prison for life. In prison, she was manacled full-time, and the manacles bore points to dig into her flesh. She had to roll on the floor to eat. She was released in 1979, three years after Mao’s death, with her spirit unbroken.
Right of Assembly
The textual right of assembly is related to the implied right of association. As the U.S. Supreme Court has recognized, the right of association is implied by the other First Amendment rights, and is necessary to their exercise.
Under the CCP, no associations could exist except those under government control. No assemblies on political matters were allowed, except those demanded by the government.
But when Premier Zhou Enlai died in January 1976, huge, spontaneous, and unauthorized crowds assembled to mourn him. The crowds considered him relatively less totalitarian and oppressive than Mao. Unlike the Tiananmen rallies of the early Cultural Revolution, which originated from the top down, the crowds that gathered to mourn Zhou expressed people power. “The country had not witnessed such an outpouring of popular sentiment since before the communists came to power in 1949.” Li Zhusui, The Private Life of Chairman Mao 611 (Tai Hung-Chao trans. 1994).
While there were demonstrations at over 200 locations throughout the country, the flashpoint was in Beijing’s Tiananmen Square, which saw the largest spontaneous demonstration ever in China. On April 4, Tomb-Sweeping Day (Qing Ming), a traditional day for honoring one’s ancestors, an immense crowd gathered at the Monument to the People’s Martyrs in Tiananmen Square. Erected in 1959, the monument honored Chinese revolutionary martyrs from 1840 onward.
That night, the Tiananmen assembly was attacked by the Capital Militia Command Post (a/k/a the “Cudgel Corps”). According to one report, it later took hundreds of workers to scrub off all the blood.
“A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Amendment II.
The Second Amendment ensures that the government will never have a monopoly of force. As Americans knew from recent history in Europe and from ancient history, people who were first disarmed were often tyrannized later.
The Chinese Communist Party was aware of similar lessons of history. In a 1938 speech, Mao explained, “Our principle is that the Party commands the gun, and the gun must never be allowed to command the Party. . . . According to the Marxist theory of the state, the army is the chief component of state power. Whoever wants to seize and retain state power must have a strong army.” Problems of War and Strategy (Nov. 6, 1938).
In 1949, one of the new regime’s “first acts” was “to confiscate weapons.” Jung Chang & Jon Halliday, Mao: The Unknown Story 424 (2005). Homes were inspected to “search for forbidden items, from weapons to radios.” Frank Dikötter, The Tragedy of Liberation: A History of the Chinese Revolution 1945-1957, at 45-46 (2013).
By ensuring that all the people could be armed, the Second Amendment aimed to ensure that the militia would be drawn from all people. If the government were allowed to disarm people, then instead of a general militia of the people, there would be a “select militia” of the government’s favorites and toadies. At the Virginia Convention for ratifying the U.S. Constitution, George Mason had warned that a select militia would “have no fellow-feeling for the people.” (June 14, 1788).
As the U.S. Supreme Court noted, in England, the despotic Stuart kings in the seventeenth century had used “select militias loyal to them to suppress political dissidents, in part by disarming their opponents.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Further, said the Court, the Second Amendment was enacted in part to assuage fears that the U.S. government “would disarm the people in order to impose rule through a standing army or select militia.” Id. at 588.
Under Mao, a select militia was the instrument for forcing most of the population into de facto slavery. In the 1958-62 Great Leap Forward, the select militia became the instrument that caused the deaths of over forty million people from famine.
In a nation of over 600 million people, the select militia comprised fewer than 2 percent of the population. Unlike in the American system, militia arms were not personally owned but were usually centrally stored and guarded.
According to a political refugee interviewed in Hong Kong in the 1950s, in a farm commune of 15,000 families, there would be about 1,500 militiamen, chosen from the politically correct, who would have rifles. Of these there was “a further selection of 150 super-reliable men whose rifles are always loaded.” Suzanne Labin, The Anthill: The Human Condition in Communist China 104 (Edward Fitzgerald trans., Praeger 1960) (1st pub. in France as La Condition Humaine en Chine Communiste (1959)). “Otherwise ammunition is kept at a central armoury guarded day and night by special police armed with machine-guns. As an extra precaution the personnel of this guard is changed every two months.” Id. A hundred and fifty always-armed males could control 15,000 families.
“They would turn out to be crucial in enforcing discipline, not only during the frenzy to establish communes, but throughout the years of famine that lay ahead.” Frank Dikötter, Mao’s Great Famine: The History of China’s Most Devastating Catastrophe, 1958-1962, at 182 (2010). “[L]ocal militia were a critical ingredient in the CCP’s consolidation of power in the countryside.” Elizabeth J. Perry, Patrolling the Revolution: Worker Militias, Citizenship, and the Modern Chinese State 182 (2007).
“The militia movement and a small corps of trained fighters brought military organization to every commune. All over China farmers were roused from sleep at dawn at the sound of a bugle and filed into the canteen for a quick bowl of watery rice gruel. Whistles were blown to gather the workforce, which moved in military step to the fields. . . . Party activists, local cadres and the militia enforced discipline, sometimes punishing underachievers with beatings.”
Dikötter, Famine, at 50. “Militiamen spearheaded the countless mobilization campaigns that were the hallmark of Mao’s rule. They enforced universal participation by all members of the factory or village, dragged out or designated targets of struggle [persons targeted for persecution], and monitored mass meetings.” Perry, at 191.
A case study of the remote village of Da Fo, located on the North China Plain, details the operation of the select militia. There, guns had been confiscated in 1951 (later than the general confiscation in 1949, perhaps because of the village’s isolation). Over the course of the war against the Japanese invasion and then the final phase of the civil war (1945-49), the high-quality leaders of the Da Fo communist militia had been moved elsewhere, to positions of greater responsibility. The militiamen left behind were the dregs of society. “Villagers remember them as poorly endowed, uneducated, quick-tempered, perfidious hustlers and ruffians who more often than not operated in an arbitrary and brutal political manner in the name of the Communist Party.” Ralph A. Thaxton, Jr., Catastrophe and Contention in Rural China: Mao’s Great Leap Forward: Famine and the Origins of Righteous Resistance in Da Fo Village 329 (2008).
There were no rules against them exploiting or coercing peasants. To the extent that the national government provided subsidies, the militia took them. The Da Fo militia had 30 guns and kept the crop fields under a four-man armed guard day and night, to prevent peasants from obtaining food.
“The militia was a repressive institution, and Mao needed it to press the countless rural dwellers who were resisting disentitlement by the agents of the people’s commune.” Id. “These men were practically the perfect candidates to tear apart civil society and destroy human purpose. . . . [T]hey had a lot in common with the Khmer Rouge in Cambodia, with Ceauşescu’s militias in Transylvania, and with the Janjaweed in the Darfur region of Sudan. In rural China of the late 1950s, as in these other killing field environments, such men were backed by state power.” Id. at 330.
The militia and the communist party cadres carried large sticks they used to beat the peasants. The frontline enforcers were under orders from their superiors to administer frequent beatings, and those who failed to do so were punished. “A vicious circle of repression was created, as ever more relentless beatings were required to get the starving to perform whatever tasks were assigned to them.” Dikötter, Famine, at 299.
Without the select militia, “surely the famine’s death rate would not have been so high.” Thaxton, at 331. Because of the select militia, peasants suffered “socialist colonization, subhuman forms of labor, and starvation.” Id. at 334.
Tibet
The Chinese Communist army invaded eastern Tibet in 1949 and central Tibet in 1951. At first, they ruled relatively mildly, while they worked hard at building a transportation infrastructure for permanent military occupation. But in 1956, the Chinese announced gun registration, which the Tibetans accurately foresaw as a step towards gun confiscation. In 1957, the CCP demanded that Tibetans surrender all their firearms.
Tibet was a universally armed nation. Every man was expected to have a firearm and be proficient with it. The Tibetan Buddhist monasteries had large arsenals. Even the poorest beggar would at least have a large knife.
As the Dalai Lama later recalled, when he heard about the gun confiscation order, “I knew without being told that a Khamba [Eastern Tibetan] would never surrender his rifle — he would use it first.” Roger Hicks & Ngakpa Chogyam, Great Ocean 102 (1984) (authorized biography).
The historically fractious Tibetan tribes united in a national resistance movement, the Chushi Gangdruk. For a while, they drove the Chinese out of most of Tibet, and liberated hundreds of thousands of square miles.
Yet although the Tibetan volunteers were, man-for-man, vastly superior fighters to the Chinese conscripts, the Chinese eventually wore down the Tibetan resistance through sheer force of numbers, just as centuries before barbarians in Europe had overwhelmed the Roman Empire’s legions.
The Tibetan resistance movement did make it possible for 80,000 Tibetans, including the Dalai Lama, to escape to India and Nepal, where they have kept the Tibetan Buddhist religion alive, free of CCP domination, and have continued to inform the world about the CCP’s colonialism and genocide in Tibet.
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Amendment III.
Unlike some of the bad monarchs in England and France, Mao did not force families to let soldiers live in their homes. Rather, Mao forced people to live in soldiers’ homes, as prisoners under constant armed guard.
Starting in the Great Leap Forward, the government seized all farmland and forced people into communal labor. In many communes, families had to leave their homes, live in sex-segregated barracks, and eat in mess halls. Husbands and wives were allowed one short conjugal visit per week. This was consistent with Marxism, which boldly demanded “Abolition of the family!” Karl Marx, Communist Manifesto 24 (Samuel Moore & Friedrich Engels trans. 1888) (1848).
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” Amendment IV.
Starting in 1955-56, the CCP ordered that people allow home inspections at any time. This was part of a household registration system that also required people to reside in the registered place permanently, unless they were given government permission to move. People could travel only when issued a permit, had to register when staying somewhere else overnight, had to register their own house guests, and had to report on the content of conversations with guests.
All postal mail could be secretly opened by the government, its contents recorded in the government’s secret files on every person, to accumulate material for potential later use against the writer.
During the Cultural Revolution, Mao’s mobs, the “Red Guards,” searched house-to-house for concealed arms, books, religious items, gold coins, and evidence of disloyalty. If something was found, the victims were tortured. “Every night there were terrifying sounds of loud knocks on the door, objects breaking, students shouting and children crying. But most ordinary people had no idea when the Red Guards would appear, and what harmless possessions might be seen as suspicious. They lived in fear.” Frank Dikötter, The Cultural Revolution: A People’s History, 1962-1976, at 86-90 (2016). Many people pre-emptively destroyed their books and artwork, lest the Red Guards discover them. Ordinary thieves posed as Red Guards to get in on the looting.
“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” Amendment V.
The prohibition of “double jeopardy” means that if a person is tried for alleged crime and acquitted, the government cannot prosecute the same person a second time for the same offense. This was irrelevant under Mao, since persons who were accused were always convicted the first time.
While the Fifth Amendment forbids compelled self-incrimination, self-incrimination was mandatory under Mao. If an arrested person did not confess to whatever crimes she was accused of, she would be tortured until she did.
The Takings Clause means that government must pay compensation when it takes a person’s property. But under Mao, property could be taken at any time. Some people had no property at all. For example, starting with the Great Leap Forward in 1958, the peasants forced to live in barracks on the collective farms were not allowed to own even a spoon.
The communists had won the revolution in part because they had promised to give land to the peasants. The communists did so in the years immediately after the revolution. Then starting in 1958, the land was taken by the government. The peasants were turned into serfs—forbidden to leave the land and forced to labor under armed guard to produce crops, most of which the government would take without compensation.
In the Cultural Revolution, Mao’s rage mobs roamed the streets, attacking women for bourgeoise behavior such as wearing dresses or having long hair. Poor street peddlers, barbers, tailors, and anyone else participating in the non-state economy were attacked and destroyed. Many of them were ruined and became destitute.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Amendment VIII.
The system of bail allows a person who has been arrested for crime to be released from jail pending trial, if the person posts a bond to ensure that he will appear in court for trial. Under communism, once a person is arrested, the person may simply “disappear,” never to be seen in public again.
While the Eighth Amendment prohibits torture, torture was a common tool of the Mao regime. Soon after the communists seized power in 1949, their “land reform” program encouraged peasants to torture and then kill small farmers and landlords. If Mao decided that a high-ranking official was now an enemy, he would have the official tortured in front of an assembly of the communist elite.
In the Cultural Revolution, Mao’s rage mobs roamed the streets with leather belts with brass buckles, which they used to beat their targets senseless, often inflicting severe injury. Sometimes the victims were forced to lick their blood up from the street. Any pedestrian could be accosted by Red Guards, ordered to recite quotations from Chairman Mao, and then tortured on the spot for not having memorized enough of them.
The Cultural Revolution also brought a savage campaign of genocide and torture of the minority Mongol population, living in north-central China. Ethnic minorities in other border regions received similar treatment.
A new round of purges began in 1969 and ran through 1971, based on a supposed “May Sixteenth” conspiracy from 1966. This was the date that a circular had announced the creation of the Central Cultural Revolution Group, which would publicly unleash the Cultural Revolution several days later. Supposedly, May 16 was also the debut of a secret plot against Premier Zhou Enlai. Although Zhou was himself a member of the Central Cultural Revolution Group, there were others in the group, including Mao’s wife, who hated him and plotted against him. Whatever the intrigue at the top, the persecution of “May Sixteenth elements” did not target Madame Mao but instead large numbers of people who had no plausible connection to any conspiracy; they were tortured into confessing to having joined a conspiracy that they had never heard of before they were arrested.
Meanwhile, in rural areas, where the Cultural Revolution was less intense, the local militias, aware of all the killing and torture going on in the towns and cities, decided to demonstrate their loyalty by going on their own spontaneous murder and torture sprees.
The victims were not participants in Cultural Revolution politics. Rather, the targets were the “Four Types”—who since 1949 had always been easy targets for attack. These included former landlords, anyone who had owned a small business before the revolution, anyone who was claimed to be a noncommunist, and any “bad element” who had supposedly deviated from the CCP orthodoxy of the moment.
Victims were typically denounced in public show trials that everyone in the village had to attend. Some victims were executed in plain sight to spread terror. Execution methods involved firearms, beating and torturing people to death (always common under Mao), or imaginative procedures, such as marching victims off a cliff.
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Amendment IX.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Amendment X.
The U.S. constitutional system is based on the sovereignty of the people. The people delegate some powers to the federal government, via the Constitution. The Ninth Amendment makes it clear that the Bill of Rights is not an exclusive list of the people’s retained rights. The Tenth Amendment affirms that the people and their state governments retain all powers that were not delegated to the federal government.
Under communism, the people have no “retained” rights or “reserved” powers. The omnipotent sovereign is the communist party. Under Maoism, the only purpose of human existence was to serve Mao.
Dave Kopel is Research Director of the Independence Institute; an Adjunct Scholar with the Cato Institute, in Washington; and adjunct Professor of Constitutional Law at the University of Denver’s Sturm College of Law. His website is www.davekopel.org. He is a regular panelist on Colorado Public Television’s “Colorado Inside Out” and a columnist for the Reason magazine on the Volokh Conspiracy law blog.
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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.
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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]
[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. PorterAmending the Constitution Without Amending the Constitution
Article 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.”
[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.
[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.
[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.
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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.
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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.
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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.
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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,
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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.
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.
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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.
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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.”
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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.
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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.
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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.
[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.
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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.
[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.
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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.
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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]
[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.
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.”
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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.
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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.
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.
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Parthiv Varanasi, Plano, Texas – 2023 Turner Maurice Gauntt, Jr. Exemplary Citizen Award Winner
BlogPrinciple 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.”
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.
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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.
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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.
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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.
[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.
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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.
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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.
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.”
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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 Article I, Section 9, the prohibition applies to the federal government. The subsequent section of the charter likewise targets state enactments. These provisions are a proto bill of rights in the body of the original document, which makes them unusual in that opponents of the Constitution often cited the lack of a bill of rights as the reason for their stance. Still more thought-provoking is the claim often made then that such laws would be invalid even without an express constitutional provision. That position required its advocates to appeal to higher principles of justice or law as limiting the power of legislatures.
Emblematic of that approach was the opinion of Justice Samuel Chase in the 1798 case of Calder v. Bull. The suit involved a Connecticut case in which a will initially had been denied probate, to the benefit of certain of the deceased’s heirs at law, Mr. and Mrs. Calder. The state legislature then enacted a law which provided for a new hearing that was not permitted under the statute in effect when the original proceedings were held. The will was then admitted to probate, which benefitted the beneficiaries under that will, Mr. and Mrs. Bull.
Justice Chase defined ex post facto laws as,
He also gave examples of English precedents to illustrate the dangers of such laws. Bills of attainder were acts of Parliament that imposed the death penalty on an individual for a criminal act. If Parliament imposed a lesser penalty, the law was a bill of pains and penalties. Either one was odious. Often, but not always, they operated ex post facto:
But Chase went further and declared that a legislature could not pass bills of attainder or other ex post facto laws, even if there were no express constitutional prohibition. He urged that such laws were against the social compact through which people enter into political society and against fundamental principles of free republican government. A legislature that undertook such an action might engage in an “act” but had not made a “law,” because a law must not conflict with the fundamental purposes for which governments are formed by the people, to protect their persons and property.
He provided examples of the types of laws that are so destructive of personal liberty and private property and so manifestly unjust, that they are obvious and flagrant abuses of power:
If bills of attainder and ex post facto laws were so obviously contrary to justice, reason, and the essential purposes of governments, why then is there a need for specific prohibitions in the Constitution? Some delegates in the Philadelphia convention and in the state ratifying conventions raised that very question. A couple of reasons present themselves.
Consider another opinion in Calder, that of Justice James Iredell. He agreed about the definition of ex post facto laws and their unconstitutionality under the express provisions of the Constitution. But he also warned that, in their absence, a court was incompetent to declare such laws void.
The reason was that natural justice was not a sufficiently precise concept to allow judges to override the legislature’s power to make all laws which are not expressly prohibited to it: “The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”
Another reason was that, in fact, there had been such laws passed. During the debate in the Virginia ratifying convention in June 1788, Patrick Henry defended the use of bills of attainder and ex post facto laws in some circumstances. His example was the case of one Josiah Philips, a loyalist guerrilla leader during the Revolutionary War. Philips’s band had repelled a militia sent by then-governor Patrick Henry. Henry then had sought an attainder of Philips. None other than Thomas Jefferson had drafted the bill of attainder which the legislature had adopted unanimously on May 28, 1788. The bill accused Philips and his associates of various crimes amounting to treason and directed that they be executed expeditiously after their capture. Moreover, if those attainted had not turned themselves in to the authorities, the act directed that “it shall be lawful for any person with or without orders, to pursue and slay the said Josiah Philips and any others who have been of his associates or confederates… or otherwise to take and deliver them to justice to be dealt with according to law provided that the person so slain be in arms at the time or endeavoring to escape.”
Edmund Randolph, the state attorney general at the time, had opposed the attainder. Instead, when Philips was caught, he was tried and convicted by a jury for grand theft of 28 hats and five pounds of twine. That made little difference in the end, as the punishment for that conviction also was death by hanging. Both Henry and Jefferson years later still defended the attainder of someone they considered the equivalent of a pirate engaged in crimes against humanity and therefore hostis humani generis, beyond the protection of the law.
Nor was Virginia alone. Many other states engaged in the practice against Loyalist Tory sympathizers. It must be noted, however, that actual executions under such attainders were rare, estimated by one authority to number 15 during the entire war. The Pennsylvania legislature, acting on its own initiative or at the instigation of its judiciary, enacted attainders for treason in hundreds of cases, although only four ended in hangings, all of Quakers. Due to its pacifism, that religious minority was broadly suspected to be at least unfriendly to the Patriot side. A particularly colorful tale is that of the members of the extended Doane family of Loyalist Quakers who helped the British while marauding in the countryside.
Several states used such attainders, even though their own constitutions prohibited them. It was to these events that James Madison was reacting in The Federalist No. 44 in language similar to Justice Chase’s,
Although all justices in Calder v. Bull agreed that ex post facto laws were those that retroactively altered rules about conduct to the detriment of the now-accused, there apparently was less unanimity about that definition during the debate over the Constitution. Some constitutional historians, most notably Professor William Crosskey writing in the mid-20th century, have argued that the phrase ex post facto was commonly understood in the 18th century to apply to any retroactive law. They have reviewed the records of the debates at the Philadelphia convention, primarily the printed Journal of the Convention, James Madison’s notes and notes taken by another delegate, David Brearley, a future New Jersey chief justice, and by convention president George Washington. Crosskey also analyzed numerous other contemporary English and American sources of 18th-century usage of the term.
The more restricted definition arose when, according to Madison’s notes, some delegates registered confusion about the phrase. John Dickinson, a much-respected authority on constitutional law at the time, then claimed to have researched the matter by consulting Blackstone’s influential Commentaries on the Laws of England. He concluded that Blackstone defined the phrase as applying only to retrospective criminal laws. The problem is that this definition appears to conflict with the Journal and with another part of Madison’s notes recording a debate about the clause a day earlier, on August 28, 1787, where the speakers assumed that the phrase applied more broadly to all retrospective laws. As well, the notes of Brearley and Washington reflect that earlier, broader understanding and say nothing about Dickinson’s remarks. Dickinson’s own papers about the Constitution do not show that he made those remarks.
Ten months later, during the intense debates in the Virginia ratifying convention, Patrick Henry also charged that the ex post facto clause applied to all retrospective laws, criminal and civil. Henry objected that, if no such laws were permitted, would the old worthless continental paper dollar notes have to be repaid at face value with gold and silver because no law could discharge such payment retroactively. Faced with such assertions, it is surprising that neither Madison nor his fellow delegate to the Philadelphia convention Edmund Randolph cited Dickinson or Blackstone. As a result, these historians speculate that Madison’s position in the Virginia convention and in essay No. 44 of The Federalist, which was adopted in Calder was not correct and that, indeed, Madison made up the Dickinson remarks and added them to his notes some years after the events.
Whatever the understanding about the scope of ex post facto was in 1787, the more limited meaning put forth by Madison in his essay and in the Virginia convention, and adopted by the justices in Calder is the accepted meaning today. Retroactive criminal laws create profound instability in that no one can predict whether one’s conduct is outside the law, because the law might be changed retroactively at any time. Their potentially destructive effect on people’s lives justifies Justice Chase’s description of ex post facto laws as contrary to basic conceptions of justice and a fundamental violation of the proper relationship between the government and the governed.
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Principle of a Grand Jury Indictment of Capital Crimes Before a Person May Be Held to Account
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, James C. Clinger Essay 56: Principle of a Grand Jury Indictment of Capital Crimes Before a Person May Be Held to Account – 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, Janine Turner
The principle of requiring grand jury indictment prior to trial for a capital or other infamous crime has a long and somewhat checkered history in American and English jurisprudence. Today, the primary task of a grand jury is to determine whether there is sufficient cause to bind over an accused criminal for trial. If so, this jury composed of private citizens issues a “true bill” of indictment or a “presentment.” Presumably, the primary purpose of this process is to screen out weak or frivolous accusations to protect the innocent from the ordeal of a trial. But that was not the original function of the grand jury. When the grand jury indictment process began with the Assize of Clarendon in 1126, King Henry II established a proceeding in which a collection of freemen would assemble to pass a preliminary judgment on the guilt of the accused. If the grand jury failed to issue an indictment, the jurors were subject to heavy fines. If they did indict, the accused was often subject not to a trial by a jury of his peers, but to trial by ordeal, which normally did not end well for the accused. Over the years, grand juries gained some measure of independence from the prosecution and from the Crown, and their indictments were not construed as determinations of guilt.[i]
The practice of grand juries in colonial America was crucial to not only the administration of justice but also to the political resistance to British rule. In several instances, colonial grand juries refused to invite criminal suspects accused by the royal governors and attorneys general of the colony. In what is probably the most famous colonial press freedom trial, a printer, John Peter Zenger, was accused of seditious libel by the New York governor William Cosby, but two grand juries refused to indict him. Cosby ultimately used an alternate legal device, an “information” accusing Zenger of the crime and binding him over for trial. A petit or trial jury acquitted Zenger, demonstrating the independence of the courts and the importance that private citizens can have when they participate in a legal proceeding.[ii]
Grand juries also carried out some investigative functions, sometimes acting more or less independently of government officers. Sometimes grand juries investigated civil offenses and even oversaw the administration of government services. At a time when government was small and not particularly professional, grand juries took on functions that today would be considered work for civil servants.
By the time of the American Revolution, many grand juries were regularly refusing to indict colonists who resisted British rule, even in instances in which there was more than enough evidence to bind them over for trial. Grand juries also became more inclined to indict British soldiers and administrators who were thought to have committed crime.
After independence, the Framers of the United States Constitution sought to include a guarantee that anyone accused of a capital or otherwise infamous crime would first have the case examined by a grand jury, with limited exceptions for military personnel during times of war or insurrection. The protection was included in the Fifth Amendment, which also contains protection against self-incrimination and violations of due process. No longer could anyone accused of a federal crime be brought to federal court under an “information” sworn by a federal officer. They must first face a grand jury made up of private citizens.[iii]
Throughout American history grand juries have come to be known as tools of prosecutors, even though they are not formally part of any prosecutorial office. A very high percentage of cases brought to grand juries result in indictments, and the process under which the grand jury works is much different from that of a trial jury. Defendants do not have a right to counsel or the opportunity to cross-examine witnesses. Prosecutors have no obligation to share exculpatory evidence with the accused. Indictments by grand juries do not require a unanimous vote of their members. The proceedings of a federal grand jury are not open to the public, and testimony and evidence presented there are kept secret. In rare cases, judges may order the release of grand jury evidence, but those are limited by Rule 6(e) of the Federal Rules of Criminal Procedure and by the USA PATRIOT Act in some cases involving terrorist threats. Some federal circuit courts of appeals have ruled that judges have some inherent authority to unseal records from grand jury proceedings, even in situations where the exceptions listed in Rule 6(e) do not apply, but other circuits disagree. The secrecy requirements are generally justified as a means of protecting the reputations of innocent parties.[iv]
Most states make use of grand juries, although a few do not. In those states, criminal defendants are bound over for trial through the use of an “information” (i.e., a sworn statement by a competent public officer testifying that there is probable cause to believe the accused is guilty of a crime). In the case of Hurtado v. California, the United States Supreme Court ruled that California’s failure to rely upon a grand jury indictment in a capital case did not violate the Fourteenth Amendment’s due process clause.[v] Most provisions of the federal Bill of Rights have been incorporated by the due process clause, but the grand jury indictment requirement has not. This may be explained by the common criticisms of the procedures used in grand jury proceedings. Nonetheless, many observers believe that this requirement should be incorporated. Grand juries are one of the primary ways in which private citizens participate in the justice system. In many cases, grand juries may be the only juries criminal defendants will ever face, since so many cases result in plea bargains that are accepted by a judge without empaneling a jury. If grand juries are not used, the accused may never have an opportunity to have their case considered by any collection of private citizens.[vi]
[i] Fouts, Gregory T. 2004. “Reading the Jurors Their Rights: The Continuing Question of Grand Jury Independence.” Indiana Law Journal 79 (1): 323–44.
[ii] https://www.mtsu.edu/first-amendment/article/1235/john-peter-zenger
[iii] Gonzalez-Rivas, Rebecca. 2020. “An Institution ‘at Arm’s Length’: Reconsidering Supervisory Power over the Federal Grand Jury.” University of Chicago Law Review 87 (6): 1647–95.
[iv] Beale, Sara Sun, and James E. Felman. 2002. “The Consequences of Enlisting Federal Grand Juries in the War on Terrorism: Assessing the Usa Patriot Act’s Changes to Grand Jury Secrecy.” Harvard Journal of Law & Public Policy 25 (2): 699-720.
[v] 110 U.S. 516 (1884)
[vi] Frey, Robert W. 2022. “Incorporation, Fundamental Rights, and the Grand Jury: Hurtado v. California Reconsidered.” Virginia Law Review 108 (7): 1613–56.
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Principle of Right to a Speedy Trial by a Jury of Peers, Public and Impartial, Without Cruel or Unusual Punishments
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 55: Principle of Right to a Speedy Trial by a Jury of Peers, Public and Impartial, Without Cruel or Unusual Punishments – 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, Janine Turner
The right to a trial by jury is one of the core principles of the Anglo-American constitutional tradition. The trial by jury ensures that the government is limited, essential rights are protected, and the rule of law is preserved. As Thomas Jefferson noted to Thomas Paine, “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.”
The trial by jury can be traced back to Magna Carta (1215), which King John signed as a limit on royal power. Clause 39 read, “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.” It protected the right of habeas corpus—meaning that one could not be indefinitely imprisoned.
The English Bill of Rights (1689) confirmed the right to a trial by jury. It also protected related rights for those accused of crimes. The document guaranteed a trial by jury as well as protections against arbitrary government. It outlawed cruel and unusual punishments, excessive fines, and unreasonable bail for the accused.
The English colonists brought this tradition of rights to British North America. They expected to enjoy the rights of Englishmen. The trial by jury became a core issue of the resistance to British tyranny during the 1760s and 1770s. The British began enforcing the Navigation Acts regulating imperial trade more stringently and tried colonial smugglers in Vice-Admiralty courts. These courts did not have juries, and cases were decided by judges. Colonists felt as if they could not get a fair trial and protested this injustice.
In late 1765, delegates from nine colonies attended the Stamp Act Congress in New York. They issued a list of resolutions claiming their rights especially the principle of “no taxation without representation.” They also asserted the right to a trial by jury. “That trial by jury is the inherent and invaluable right of every British subject in these colonies,” the Stamp Act Resolutions read. Many other documents claimed this essential right over the next decade.
The Declaration of Independence asserted the right of a people to overthrow an oppressive government violating their rights. The Continental Congress included a list of grievances against arbitrary government to prove British tyranny and justify separation. One of those grievances was blaming the king for “depriving us in many cases, of the benefits of Trial by Jury.”
When the Framers created the United States Constitution during the Philadelphia Convention in the summer of 1787, they protected some basic rights including habeas corpus and trial by jury. Article III, section 2 guaranteed the right to a trial by jury. It stated, “The Trial of all Crimes, except in Cases of Impeachment, shall be by jury; and such Trial shall be held in the State where the said Crimes shall have been committed.”
During the 1787-88 ratification debate, the opponents of the Constitution, the Anti-federalists, argued for a Bill of Rights to protect individual liberties against a more powerful national government. The Federalists, those who supported the Constitution, promised to create a Bill of Rights in the First Congress. In 1789, Representative James Madison urged his colleagues to craft a Bill of Rights and took the lead in the process.
Congress did pass a Bill of Rights that was ratified by all the states by 1791. It provided widespread protections of rights for the accused including the right to a fair and speedy trial in criminal prosecutions, the due process of law, the right to an attorney, and no cruel and unusual punishments. The Seventh Amendment guaranteed a jury in civil trials.
The right to a trial by jury and related essential rights have been a bedrock of justice and the rule of law in the American constitutional system. Controversies have arisen throughout American history such as the suspension of habeas corpus during the Civil War, the denial of trials for Blacks during slavery and rarely fair trials during segregation, the constitutionality of the death penalty, and the holding of terrorists in Guantanamo Bay without a trial during the War on Terror. During the 1960s, the Court also protected several rights of the accused including the right to a trial by jury for the indigent in Gideon v. Wainwright (1963) and the right against self-incrimination in Miranda v. Arizona (1966).
The right to a trial by jury has been one of the foundations of a just constitutional order and limited government in the British tradition and under the American Constitution. The trial by jury thwarts arbitrary government and provides a rule of law that preserves the liberties of the people.
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Principle of No Unreasonable Searches and Seizures
90 in 90 2023, James S. Humphreys, 6. Guest Constitutional Scholar Essayists, Blog Essay 54: Principle of No Unreasonable Searches and Seizures – Guest Essayist: James Humphreys, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, James S. Humphreys, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
The Fourth Amendment to the United States Constitution protects Americans from “unreasonable searches and seizures” by government officials. The Fourth Amendment was ratified in 1791 along with the other nine amendments in the Bill of Rights. It reads, “The rights of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” The Fourth Amendment safeguards Americans from heavy-handed and arbitrary government action in some of the most private arenas of their lives.
The experience of the American colonists with British military and civil officials during the American Revolution convinced many colonists of the necessity of defending themselves from invasion and search of their homes by government agents. A number of state constitutions, written in 1776 during the early stages of the Revolution, included in a list of rights belonging to citizens a prohibition against the use of general warrants. Among the states with such a restriction in their constitutions were Maryland, Virginia, and Pennsylvania.
British officials, during the colonial era, often used general warrants to justify the search of a colonist’s home. General warrants provided little detail about whom or what were to be searched for, and, in some cases, colonists, with no evidence against them of illegal activity, suffered the indignity of having their homes searched. The Fourth Amendment demanded that a warrant be more detailed for a search and seizure to be legal. First, to obtain a warrant, there had to be “probable cause” or a good reason to believe a search was necessary in order to uncover evidence of a crime that might be used in a court of law. Second, a search warrant had to denote explicitly whom or what authorities were searching for and where their search would take place. Third, a warrant had to be signed by a judge. These three conditions lessened the chance of government authorities carrying out a baseless search of an American’s home and personal property.
State and federal judges’ interpretations of the Fourth Amendment became more complicated in the twentieth and twenty-first centuries than in earlier eras with the explosion of technologies that enhanced government officials’ ability to carry out electronic surveillance of citizens. The members of the Supreme Court, for example, upheld the use of wiretapping in the 1928 case of Olmstead v. United States, but in later cases, they ruled that government officials needed search warrants to justify wiretapping. In 2010, in the case of City of Ontario v. Quon, the judges ruled that emails and other forms of communication sent by workers over their employers’ servers were searchable without a warrant. According to another Supreme Court ruling, information on a personal cell phone belonging to an individual, who had been arrested, could not be subjected to a warrant-less search. The cell phone could be confiscated by the police and searched later after the issuance of a warrant.
Online learning, widely implemented during the Covid pandemic, also has Fourth Amendment ramifications. A federal judge, in 2022, wrote that a testing system’s requirement that a student scan his room before remotely completing an online assignment met the Fourth Amendment’s definition of an unreasonable search. University officials, who appealed the decision, argued that a scan held the potential to reveal evidence that a student planned to cheat on an assignment. While questions regarding the application the Fourth Amendment to the use of electronic devices abound, there is no question that evidence, for it to be admitted in court, must be obtained legally, that is, in accordance with all laws and rulings on what constitutes a reasonable search. The Supreme Court, by a 6-3 vote, ruled that evidence gathered illegally was inadmissible in court in the 1961 case of Mapp v. Ohio.
That the Framers of the Fourth Amendment included protection from illegal searches and seizures in the Bill of Rights indicates the significance of the right to the Revolutionary generation. In no way, though, is that liberty less important now than it was in early America. Instead, with government officials’ enhanced ability to surveil American citizens through more clandestine ways than entering and searching homes, the right may be of even more significance today than it was in past eras. One thing is for certain: During every period of United States history, citizens’ freedom from illegal searches and seizures has been vital to the maintenance of a free society.
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Principle of Courts With Justices Who Hold Their Offices During Good Behavior
Benjamin Slomski, 90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog Essay 53: Principle of Courts With Justices Who Hold Their Offices During Good Behavior – Guest Essayist: Ben Slomski, Benjamin Slomski, 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
“Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788
The United States Constitution places members of the federal judiciary in a unique position. Article III stipulates that “the Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour.” Unlike members of Congress or the President who are elected for a set term length, all federal judges are appointed for the term of good behavior. Practically, this means federal judges are appointed for life. The only way to remove a federal judge from office is through impeachment by Congress, which is limited to the cases of “Treason, Bribery, or other high Crimes and Misdemeanors.”
The logic of life tenure for judges was best explained by Alexander Hamilton in Federalist No. 78. Here, Hamilton declared that
Life tenure upon appointment creates independence for the judiciary in the administration of the laws. This ensures that the laws are applied in a consistent and fair manner. Even in a republican government, the individuals who comprise the legislature are human beings who can succumb to despotic passions. Judicial independence is just as useful a safeguard from oppression in a republican government as any other.
The institutional capacity of the judiciary makes life tenure especially necessary. Hamilton explained that the judiciary lacks Congress’ power of the purse and the President’s power of the sword and wrote that the judiciary “may truly be said to have neither FORCE nor WILL, but merely judgment.” The judiciary is comparatively weaker to the other two branches of government because it lacks the will to make laws as well as the force to enforce the law. There is a risk that the political branches could ignore the Constitution and the judiciary could be too weak to resist their usurpations.
In order to protect the judicial branch from the greater powers of the other branches, life tenure is necessary to create judicial independence. Hamilton stated that
Federal judges are appointed through a political process where they must be nominated by the President and confirmed by the Senate. Once judges are appointed, however, they have life tenure so that they do not need to rely on the political branches for any further security. Life tenure allows judges to be independent from politics so that they have the security to stand up against the political branches when necessary.
Judicial independence is beneficial under all forms of government but it turns out that it is especially necessary under the American form of government with a written Constitution. For Hamilton,
A written constitution embodies the fundamental will of the people for the government. There is no point to writing down a constitution if the written limits are not enforced. The task of enforcing constitutional limitations cannot be left to Congress or the President because each would naturally be inclined to favor itself. The judiciary must exist as a third, independent branch that stands outside the political process to enforce the Constitution’s limits. Hamilton explained that it is natural that the judiciary fulfills this role because “[t]he interpretation of the laws is the proper and peculiar province of the courts.” Courts interpret and apply laws as part of their normal function and so it makes sense that it will be the judiciary that interprets the Constitution as the fundamental law of the land in legal cases.
Federal judges are given excellent job security because they are entrusted with a great responsibility. Article III ties life tenure to the specific office that is held, which is that of a judge on a court. Good behavior for judges is understood in the sense of carrying out one’s duties in a judicial manner. Judges act consistently with their constitutional charge when they remember that they are judges tasked with the application of the Constitution and the laws to particular legal cases. Judges stray from this responsibility when they seek to exercise the functions of legislating or executing laws and impose their will rather than the Constitution. Impeachment by Congress remains as a check on judges who misuse their office. Good behavior requires judges to resolve legal cases and invalidate government acts when necessary to preserve the sanctity of the Constitution.
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Principle of Freedom of a Person Under the Protection of Habeas Corpus
90 in 90 2023, Eric Sands, 6. Guest Constitutional Scholar Essayists, Blog Essay 52: Principle of Freedom of a Person Under the Protection of Habeas Corpus – Guest Essayist: Eric C. Sands, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Eric Sands, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
It has been around since the Middle Ages. It’s been called the second Magna Carta by some, and the “great writ” by others. What we are referring to is habeas corpus, a Latin phrase meaning “you should have the body.” Put most simply, habeas corpus allows a person who has been detained the chance to challenge that detention in court. This prevents the government from holding an individual indefinitely without bringing charges against them. In the American system of justice, habeas corpus applies both at the federal and state level.
While some scholars locate the origin of habeas corpus in Roman law, a less disputed claim is that habeas corpus originated in Article 39 of the Magna Carta. Article 39 held that “no Freeman shall be taken, or imprisoned…but by lawful Judgment of his Peers, or by the Law of the Land.” It is true that this does not necessarily speak directly to habeas corpus as it is understood today, but it seems to have something like habeas corpus in mind. From this starting point, though, habeas corpus evolved in the English courts and sheriffs could be served with the writ. A court could then issue an order to release a prisoner if it was found he or she was being held without cause.
The modern understanding of habeas corpus arose out of conflicts between Parliament and the king in the 17th Century. The Petition of Right in 1628 charged that the king’s jailers were ignoring the writs and were illegally detaining English subjects. In 1679, Parliament passed the Habeas Corpus Act, which applied to sheriffs and jailers who were causing delays in releasing prisoners. The Act imposed strict deadlines for responding to the writ and imposed heavy fines if sheriffs or jailers did not act promptly. By this point habeas corpus had come into its own in Britain, but it still needed to make its way to the new world.
When the United States Constitution was written, the writ of habeas corpus was the only English common law writ given specific reference in the document. Article I, Section 9 of the document provides that “the privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” This became known as the Suspension Clause and it both recognized the existence of the writ of habeas corpus and stipulated the conditions under which it could be withheld. Two years later, in the Judiciary Act of 1789, Congress provided that both justices of the U.S. Supreme Court and judges of the federal district courts “have the power to grant writs of habeas corpus for the purpose of inquiry into the cause of commitment.” Importantly, though, this law only applied to people in custody by the federal government or being tried in federal courts. Federal judges thus did not have the power to extend the writ to prisoners in the states.
During the Civil War, the Suspension Clause was put into effect by President Abraham Lincoln at the beginning of the war to deal with saboteurs and traitors operating in the state of Maryland. Under the suspension of the writ, John Merryman was arrested by military authorities, and was detained at Fort McHenry outside of Baltimore. Merryman’s lawyer petitioned Supreme Court Justice Roger Taney for a writ of habeas corpus. The issue in Ex parte Merryman was whether Lincoln, as president, could constitutionally suspend the writ in a case of rebellion. That the country was in a state of rebellion no one had any doubt. But the Constitution located the Suspension Clause in Article I, which dealt with the powers of Congress. This seemed to make it a legislative power and, therefore, one the president could not exercise alone. Lincoln believed the suspension of the writ could be undertaken by either the president or Congress, especially if Congress was not in session when an emergency began.
Taney disagreed with Lincoln and held that Lincoln had violated the Suspension Clause by suspending the writ. Yet, Taney seemed to recognize the limited scope of his power and, therefore, did not order Merryman’s release. Instead, he filed his opinion with the U.S. Circuit Court of Maryland and ordered that a copy of the opinion by delivered to the president. Taney concluded that “it will then remain for that high officer…to determine what measures he will take to cause the civil process of the United States to be respected, and enforced.” In the end, the Merryman decision became a moot point as Congress retroactively approved the suspension and passed sweeping legislation that authorized Lincoln to suspend the writ for the duration of the war. Moreover, the case left unanswered the question of who has the actual power to suspend the writ since Taney did not write in his capacity as Chief Justice and, therefore, the case did not become Supreme Court precedent.
During Reconstruction, in tandem with the passage of the Fourteenth Amendment, Congress passed the Habeas Corpus Act of 1867. This Act provided “That the several courts of the United States, and the several justices and judges of such courts, shall have power to grant writs of habeas corpus in all cases where any person may be restrained of his or her liberty in violation of the Constitution, or of any treaty or law of the United States.” What this meant, significantly, is that federal judges could now issue writs to state prisoners in state cases for violations of their constitutional rights. While this expanded protections for those charged with crimes throughout the United States, it also created a great deal of tension between the states and the national government and raised issues of federalism. Clearly, therefore, the issues related to habeas corpus have not all been resolved, yet it remains without question one of our most important civil liberties.
Principle of Innocent of Any Crime Until Proven Guilty
Ben Peterson, 90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog Essay 51: Principle of Innocent of Any Crime Until Proven Guilty – Guest Essayist: Ben Peterson, Ben Peterson, 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
Numerius, the Governor of Narbonensis, was on trial before the emperor, and, contrary to the usage in criminal cases, the trial was public. Numerius contented himself with denying his guilt, and there was not sufficient proof against him. His adversary, Delphidius, “a passionate man,” seeing that the failure of the accusation was inevitable, could not restrain himself, and exclaimed, “Oh, illustrious Caesar, if it is sufficient to deny, what hereafter will become of the guilty?” to which Julian replied, “If it suffices to accuse, what will become of the innocent?” – Coffin v. United States (1894), citing Rerum Gestarum, L. XVIII, c. 1
I served on a jury for an assault and family violence case last year. The defense counsel reminded me and the other potential jurors that the prosecution bore the burden of demonstrating the defendant’s guilt. Even if the defense presented no evidence, called no witnesses, or gave no testimony, jurors were not to take absence of exculpatory evidence as an indication of guilt. It was the prosecutor’s task to prove, beyond a reasonable doubt, that the defendant was guilty.
Neither the phrase “innocent until proven guilty,” nor “presumption of innocence” appears in the United States Constitution. Yet, the presumption of innocence is a fundamental principle of our legal order. Colonial governments and the First Continental Congress invoked the principle, it lies in the background of protections for the accused and requirements of due process in the Fourth and Fifth Amendments, and it appears in the constitutions or penal codes of some states.
Supreme Court justices have referred to the presumption of innocence as a fundamental, axiomatic legal principle. Associate Justice Joseph Story (d. 1845), offering the opinion of the Supreme Court in United States v. Gooding (1827), wrote that, “the general rule of our jurisprudence is that the party accused needs not establish his innocence, but it is for the government itself to prove his guilt before it is entitled to a verdict or conviction.” Associate Justice Edward Douglass White (d. 1921), writing for the Court in Coffin v. United States (1894), wrote, “The principle that there is a presumption of innocence in favor of the accused is the undoubted law, axiomatic and elementary, and its enforcement lies at the foundation of the administration of our criminal law.” The Court found that the lower court should have instructed the jury that,
The doctrine of presumed innocence has medieval roots, and there are ancient principles regarding fair procedure that are widely shared, finding echoes in Talmudic and Islamic legal theory, and even in the Code of Hammurabi, as well as Roman law. While Justice White and other writers traced the principle to the English common law, in great measure incorporated into the American legal order, Kenneth Pennington credits a French canon lawyer who lived in the thirteenth and first part of the fourteenth century, Johannus Monachus (d. 1313), with the first clear, pithy formulation of the principle that a person is presumed innocent until proven guilty: “item quilbet presumitur innocens nisi probetur nocens.”
The canonist was himself referring to a decretal by Pope Innocent III (d. 1216), and he was among a number of jurists who, in the thirteenth century, sought to ground procedural rights of defendants charged with criminal acts in the divine law and biblical teaching. After all, even God, the supreme judge, did not expel Adam and Eve from the Garden of Eden before they had a chance to appear and plead their case. These canonists drew on and contributed to the Ius commune, the common law of the civil law systems of Europe, based on the Corpus juris civilis of Justinian, moving European legal systems away from trial by ordeal or even torture such as employed in some inquisitorial proceedings to induce confessions.
As Pennington notes, there were jurists who argued, contrary to the presumption of innocence, that public order often requires limiting the rights of the accused to ensure conviction of the guilty. The Ius commune, and subsequently judges and jurists contributing to the English common law, instead adopted the principle reflected in William Blackstone’s (d. 1780) famous ratio: “The law holds that it is better that ten guilty persons escape than that one innocent suffer.” Blackstone was an authority on jurisprudence at the time of the American founding and early republic, and in his ratio he was distilling a notion that other common law jurists such as Sir John Fortescue and Sir Matthew Hale had also expressed.
Pennington’s point that the English common law isn’t the primary source of the presumption of innocence notwithstanding, we find an assertion of the importance of due process of law, the idea that government must demonstrate guilt via a legal process established in advance before depriving a citizen of life, liberty, or property, in the Magna Charta (1215): “No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.”
The presumption of innocence, a legal principle with deep and broad roots in ancient, medieval, and modern tradition and experience, is a central part of the constitutional and legal order in the United States. I’ve seen the principle in action; my fellow jurors and I voted to acquit the defendant because we didn’t believe the prosecution demonstrated guilt beyond a reasonable doubt. No doubt there are many others—some innocent, some guilty—who are today not incarcerated or tagged with criminal records because of the presumption of innocence. Such is the fruit of this foundational principle of legal administration, a bulwark of constitutional liberty where it is honored.
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Principle of Due Process of Law
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, James C. Clinger Essay 50: Principle of Due Process of Law – 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. ClingerThe principle of due process of law has long been a central principle in Anglo-American jurisprudence. The principle has been formally codified within the Fifth and Fourteenth Amendments of the United States Constitution. However, while the principle has a long history, it has changed dramatically over time, with new interpretation and applications of the principle affecting not only law and administrative practices throughout the country.
In Clause 39 of the Magna Carta, the essence of due process is expressed in the following terms: “No free man is to be arrested, or imprisoned, or disseised, or outlawed, or exiled, or in any other way ruined, nor will we go against him or send against him, except by the lawful judgment of his peers or by the law of the land.”[i] At the very least, this provision limited the power of the crown to take arbitrary or capricious injurious actions that were not sanctioned by law. The phrase “law of the land” later found its way into many of the provisions of American state constitutions, although the phrase “due process of law” was also used, with apparently very similar if not identical meaning. Many of the early state courts, applying this language, considered the protections of due process or the law of the land to be a means of preventing governments from carrying out policies threatening vested rights in property of their citizens, although it could also protect their personal liberty.[ii]
The “due process” language appeared in the federal constitution in the form of the Fifth Amendment, which declares that no person “be deprived of life, liberty, or property without due process of law.” The Fifth Amendment is most famous for its provisions regarding criminal procedures, although it also contains the very significant “takings clause” pertaining to protections for property. There is very little historical record regarding the inclusion of the due process language, and the clause was not invoked by the United States Supreme Court until the 1856 case of Murray v. Hoboken Land & Improvement Company.[iii] The following year saw the clause invoked again, this time in an infamous ruling in the case of Scott v. Sanford,[iv] more commonly known as the Dred Scott decision.
For much of the period before the Dred Scott case, state courts had generally treated due process as a procedural protection, just as the wording suggests. When government deprived someone of life, liberty, or property, due process required that individuals have a right to a hearing before an impartial arbiter and to confront their accusers. In short, due process did not absolutely prohibit deprivations of life, liberty, or property by government but did require government to do so only in a manner that contained expected legal safeguards. What emerged in the Dred Scott decision was a judicial concern for the substance of government action, a view that has come to be known as “substantive due process.” To some, substantive due process is an oxymoron concept, much like “green, pastel redness,” in the words of John Hart Ely.[v] In this decision, Chief Justice Roger Taney, joined by six other justices, ruled that the federal government had deprived a slaveholder of property without due process of law by forbidding slavery in free territories under the Missouri Compromise. This decision was essentially about the substance of the federal government’s position on slavery and had little to do with the process by which that policy came into being or the way in which it was enforced. The decision was immensely controversial and must be considered one of the key events that precipitated the Civil War.
After the war, Congress proposed and the requisite number of states ratified the Fourteenth Amendment to the Constitution, which includes a due process clause that is applicable specifically to the states, rather than just the federal government. It should be noted that most state constitutions already had due process clauses at the time the Fourteenth Amendment was ratified, but this new provision involved the federal government in ensuring that due process was followed. These protections were intended to provide a legal guarantee of due process for the recently freed slaves and their descendants in all states, including the states that had promoted slavery prior to the Thirteenth Amendment. Of course, the language was quite broad, offering a guarantee of due process to all persons.
Many states, however, found ways to circumvent the due process clause, largely because the provisions applied to public action, rather than private activities. In some cases, the clause was used by business organizations who believed that state regulations deprived them of property without due process of law. In the case of Lochner v. New York, the Supreme Court invoked essentially substantive due process arguments to strike down a New York law limiting the working hours of bakers.[vi] In that case, the plaintiff successfully argued that the state law denied him property that could have been generated if his freedom to contract had not been denied by the regulation. By the 1930s, the Supreme Court stepped away from economic versions of substantive due process arguments, but in the 1960s and thereafter began to identify a doctrine of individual privacy that is not explicitly based on specific provisions of the Constitution but which appears to be a socially liberal version of substantive due process.[vii]
Another implication of the Fourteenth Amendment’s due process clause is what has been called the “selective incorporation” of the Bill of Rights. What this doctrine means is that some if not all provisions of the Bill of Rights, which originally limited the actions of the federal government, are now applied to the state governments. It is not clear that the drafters of the Fourteenth Amendment had any form of incorporation in mind when the due process clause was written. The Supreme Court did not clearly apply this doctrine until 1925 in the Gitlow v. New York decision that applied the First Amendment’s protection of freedom of speech to state governments.[viii] No majority of the Court has ever concluded that the entirety of the federal constitution applies to the states, but the Court has concluded that the Fourteenth Amendment selectively incorporates only those rights that are “of the very essence of a scheme of ordered liberty.”[ix] Over time, through incremental decisions, the Court has incorporated most of the Bill or Rights. The few exceptions include such provisions as the Third Amendment’s prohibition against the quartering of soldiers, the grand jury indictment requirement in the Fifth Amendment, and the Seventh Amendment’s stipulation that a jury trial be available for suits where the value in controversy exceeds twenty dollars.
Over the last sixty years, the due process clause of the Fourteenth Amendment has taken on new meaning because the definitions of property have changed. The language of the clause indicated that due process must be provided when the state deprives “life, liberty, or property.” In cases involving capital punishment, the government clearly must supply due process. In fact, in such cases the government is compelled to provide exceptional procedural protections. In cases involving arrest or incarceration, obviously the government is obligated to provide due process. Traditionally, when governments deprive individuals of property they are involved in activities such as eminent domain or regulations that affect personal and corporate income. But beginning in the 1960s, the courts began to perceive that individuals could have a property interest in various kinds of government benefits, which could include welfare or disability payments, public contracts, government licenses or permits, or even public employment. In 1968, the Supreme Court ruled that welfare recipients had a property interest in the receipt of their payments, so that the state of New York could not terminate payments without first having a public pre-termination hearing.[x] A few years later, applying the Fifth Amendment’s due process clause, the Court ruled that recipients of Social Security disability checks were entitled to some due process, but not as much as in the case at issue in Goldberg v. Kelly. With disability cases, post-termination hearings would be sufficient, because the Court reasoned that other interests must be “balanced” with those of the individual claimants.[xi] The courts have continued to ponder very particular circumstances in individual cases to determine how much and what kind of process is due in very particular situations.[xii]
The last issue that this essay examines is the ambiguous issue of what constitutes public action. The due process clauses of the Fifth and Fourteenth Amendments apply to public entities, not private firms or organizations. But can a private organization be subject to due process requirements if it is acting pursuant to public policies?[xiii] Of course, there is also a dispute regarding what constitutes a policy? Would a guidance document issued by a government agency be considered a public policy? A statute enacted by a legislature no doubt would be a public action. Generally speaking, a rule issued by a government agency under a legislature’s delegated authority would be considered a public action, since it would normally be considered legally binding. A guidance document or an interpretive rule would not, strictly speaking, be considered legally binding, but agencies may threaten investigations or the loss of future grant funds or contractual dollars if a private organization is not in compliance with directives that are not formally recognized as legally binding. The case law on these issues is still developing, but recent cases indicate that private organizations acting under the influence of government may be liable if they do not offer due process protections, even if the policy that they are following is quite informal. For example, Cornell University, a private institution, has been challenged by a dismissed faculty member for following irregular investigative procedures derived in part from the Title IX guidance handed down by the Office of Civil Rights within the Department of Education.[xiv]
[i] Magna Carta, Clause 39. Accessed July 7, 2023 from Magna Carta Project – 1215 Magna Carta – Clause 39 (uea.ac.uk)
[ii] Inglis, Laura. “Substantive Due Process: Continuation of Vested Rights?” The American Journal of Legal History 52, no. 4 (2012): 459–97.
[iii] 18 Howard 272.
[iv] 60 US 393 (1857)
[v] John Hart Ely, 1980. Democracy and Distrust: A Theory of Judicial Review. Cambridge: Harvard University Press, p. 18.
[vi] 198 US 45 (1905)
[vii] See, for example, Griswold v. Connecticut 381 US 479 (1965).
[viii] 268 US 652 (1925)
[ix] 302 US 319 (1937)
[x] 397 U.S. 254 (1970)
[xi] 424 U.S. 319 (1976)
[xii] Shapiro, Sidney A., and Richard E. Levy. 2005. “Government Benefits and the Rule of Law: Toward a Standards-Based Theory of Due Process.” Administrative Law Review 57 (1): 107–53.
[xiii] Verkuil, Paul R. 2005. “Privatizing Due Process.” Administrative Law Review 57 (4): 963–93.
[xiv] Vengalatorre v. Cornell University. 2022. United States Court of Appeals for the Second Circuit. Docket No. 20-1514.
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Principle of a Political System with Criminal and Civil Law
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, James C. Clinger Essay 49: Principle of a Political System with Criminal and Civil Law – 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
“…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and made directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.
The above quotation from Joseph Story, an associate justice on the United States Supreme Court, is drawn from his discussion of the United States Senate, and more specifically from his analysis of the role of the Senate in the impeachment process. Story’s analysis is an insightful illustration of what is sometimes called the separation of powers, but which some observers call “separate institutions, sharing powers.”[1]
In Article I, Section 1 of the United States Constitution, the Framers wrote that “all legislative powers are vested in a Congress. Article II of the Constitution discusses executive powers, and Article III covers judicial powers, but notably the adjective “all” is absent from the text of those articles. Only in the first article does the text emphasize the comprehensive nature of the powers vested in Congress. To make sense of this language and to contrast it with the empowering language written for the executive and judicial branches requires us to have some understanding of what words such as “legislative” and “executive” and “judicial” actually mean. Virtually all dictionary definitions describe the word “legislative” as pertaining to the making or enacting of laws. However, that definition is of little use to us if we do not have any particular idea of what a law actually is. Definitions of “law” are a bit more varied, in part because the definitions sometimes refer to regularities in natural phenomena with a common causal pattern (e.g., the law of gravity). In a constitutional context, law is generally regarded to be general rules made by government, using a proper procedure not forbidden to the government, which the government enforces with the use of penalties. Those penalties may take the forms of civil and/or criminal actions. This legislative power stands in contrast to the power of the executive, which is a word drawn from the Latin word exsequor, which means “to follow thoroughly.”[2] Ironically, the executive function has come to be known as a matter of leadership, rather than as the role of a follower. In the case of a government executive, the executive function is a matter of following or administering the rules enacted through a legislative process. The judicial power is generally a matter of making decisions regarding a legal matter in which there are two or more contending parties. Unlike the legislative power, which is applicable to all within a community, and accessible to all in a republic, the application of the judicial power has immediate effect upon the particular parties standing before the court. However, the judgments of an appellant court may become precedents that would have impact on other parties more generally.
In the case of impeachment, the Constitution authorizes a legislative function that in some respects resembles a judicial process. Article II, Section 4, of the Constitution specifically states that the president, the vice-president, and all civil officers of the United States may be removed from office “on Impeachment for, and Conviction of, Treason, Bribery, or other High Crimes and Misdemeanors.” This is a process that makes decisions regarding particular individuals accused of high crimes and misdemeanors. It is not a process that implicates whole classes of individuals or entire categories of behaviors, but a particularized decision about specifically identified individuals. The cause of action for an impeachment action is some kind of “High Crime or Misdemeanors,” which implies the possibility of a criminal proceeding. Nonetheless, as Joseph Story points out, impeachment is not considered a judicial process. No punishment beyond removal from office can be ordered through impeachment. In these instances, a civil officer accused of misconduct is examined by the House of Representatives, a chamber made up of elected individuals. Upon an impeachment vote by the House, the members of the Senate, acting as representatives of the states, consider whether or not to remove the civil officer.
As Story noted, a “free” public would be “jealous” of its power to use their elected, political representatives to make decisions on the removal of civil officers found to be guilty of misconduct. That kind of decision, if made by unelected judges, would outrage the public. As is often the case, the public has expectations about what kinds of decisions an institution within the government should make. Of course, since Joseph Story’s time public perceptions of the proper institution to address different issues may have changed dramatically. Views on the separation of powers have often changed over time. Recent events suggest that much of the public has a very results-oriented view of public decisions, without considering which institution is constitutionally authorized to make important policy choices. These views may be quite short-sighted, since an institution which usurps the powers of other institutions may occasionally make decisions favored by the public, but over the long term may accumulate power that will threaten individual rights and the aggregate interests of the public.
[1] Richard Neustadt, Presidential Power: The Politics of Leadership. New York: Wiley (1964), p. 42.
[2] https://en.wiktionary.org/wiki/exsequor#Latin
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Principle of Equal Under the Law
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Daniel Cotter Essay 48: Principle of Equal Under the Law – Guest Essayist: Daniel A. Cotter, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Daniel CotterEssay Read by Constituting America Founder, Actress Janine Turner
From the beginning of our nation’s founding, the concept that all are equal under the law and have equal justice under law has been aspirational. But in the late 1890s, with the Supreme Court of the United States’ Fourteenth Amendment jurisprudence, the concept became concrete. Questions remain about whether the concept has been fully fulfilled.
The Idea
The concept of equal under the law is pretty straightforward. It means that regardless of race or color, political views, sex, religion, or other characteristics, justice is blind and everyone is treated the same and equally under the law. From the most powerful to the penniless, all are to be treated equally under the law, from due process rights to the rights under the Fourth and Fifth Amendments. A mental image of the concept can be had by taking a look at statues of Lady Justice, who has balanced scales before her and a blindfold over her eyes, so that impartiality is the standard by which all under the law are judged.
The Fourteenth Amendment
Some have referred to the passage of the Thirteenth, Fourteenth, and Fifteenth Amendments as the “Second Founding.” The Fourteenth Amendment language provides for equal protection, Section 1 ending, “nor deny to any person within its jurisdiction the equal protection of the laws.” Blacks were the intended beneficiaries of the language, but in its early days after ratification, the Equal Protection Clause was not always used to benefit the intended beneficiaries.
The Language of Equal Justice Under Law
In 1891, in a case, Caldwell v. Texas, 137 U.S. 692 (1891), Chief Justice Melville Fuller wrote in a Fourteenth Amendment case (emphasis added), “By the Fourteenth Amendment, the powers of the states in dealing with crime within their borders are not limited, but no state can deprive particular persons or classes of persons of equal and impartial justice under the law.” In a second case, Leeper v. Texas, 139 U.S. 462 (1891), the Fuller Court repeated the same language. (The Fuller Court in 1896 in the context of segregation also gave us the language “separate but equal” in Plessy v. Ferguson, 163 U.S. 537 (1896).)
In 1958, in Cooper v. Aaron, 358 U.S. 1 (1958), a post-Brown case involving the State of Arkansas and resistance to integration of public schools, the Court in an unsigned opinion wrote:
“The Constitution created a government dedicated to equal justice under law. The Fourteenth Amendment embodied and emphasized that ideal.”
The United States Constitution itself makes no mention, except for the Equal Protection Clause, of any equality concept.
The Pledge of Allegiance
The concept of equality is embedded in many of our national documents, including the Pledge of Allegiance, which was written in 1892 (around the time of the Texas cases referenced above. The original Pledge read, “I pledge allegiance to my Flag and the Republic for which it stands, one nation, indivisible, with liberty and justice for all.” The words “under God” were added in 1954, during the Red Scare, by President Dwight Eisenhower.
The Supreme Court Building
Prior to the 1930s, the Supreme Court met in the Senate building, with no separate home. Former President William Howard Taft, who became Chief Justice of the United States, worked to establish a place for the Court. Architects suggested the front of the building, the West Pediment, have the phrase, “Equal Justice Under Law,” over the entrance, to remind all that when they stepped before the highest court of the nation, they each were treated with equality. From the beginning, some have debated the phrase and whether the nine justices inside the building have lived up to the aspirational goal.
Roots Go Way Back
Democratic principles have long included notions of equality under the law. For example, in ancient Greece, Pericles wrote of equal justice under law.
From the United States of America perspective, our initial document establishing this Union, the Declaration of Independence, which we recently celebrated, begins in substance with the concept of equality:
“We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.”
Conclusion
The debate about the law and whether all are treated “equal under the law” remains one of great interest and discussion. Our nation should be one that treats all equally under the law, and may this continue to be a goal we aspire to achieve.
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Principle of Justice for All
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 47: Principle of Justice for All – 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 United States Constitution, ratified in 1788, has stood as a beacon of democratic principles and rule of law for over two centuries. One of its most profound contributions is the pursuit of “justice for all,” an ideal engraved in the Pledge of Allegiance. The preamble to the Constitution sets the tone by stating one of the document’s purposes as to “establish Justice.” This phrase signifies the Framers’ intent to create a system of governance that promotes fair treatment and equality under the law, a cornerstone of justice.
“Justice for All,” Generally, in the Constitution
The Constitution’s first ten amendments, known as the Bill of Rights, are crucial to achieving “justice for all.” These amendments protect individual liberties and limit governmental power, thereby ensuring fairness. The Fourth Amendment protects against unreasonable searches and seizures, while the Fifth and Sixth Amendments guarantee rights that are fundamental to a fair trial, such as the right to due process and the right to a speedy and public trial. The Eighth Amendment prohibits cruel and unusual punishments, affirming that punishment must be proportional and humane.
The Fourteenth Amendment, ratified after the Civil War, is another cornerstone in the pursuit of justice. The amendment’s Equal Protection Clause prohibits states from denying any person within their jurisdiction the equal protection of the laws. This provision has been instrumental in combating discrimination and ensuring that all individuals, regardless of their race or other innate attributes, are treated equally in the eyes of the law. Landmark Supreme Court cases, such as Brown v. Board of Education have utilized the Equal Protection Clause to deliver justice to marginalized groups.
The Constitution establishes the judiciary as an independent branch of government, playing a vital role in upholding justice. Article III vests the judicial power in the Supreme Court and other federal courts as Congress may establish. The courts interpret the Constitution and have the power to strike down laws that are unconstitutional, ensuring that the principles of justice are upheld against potential abuses of power.
Lastly, the Constitution itself provides for amendments to adapt to changing societal norms and understandings of justice. The Nineteenth Amendment, which granted women the right to vote, and the Twenty-Sixth Amendment, which lowered the voting age to 18, are examples of how the Constitution can evolve to better realize the promise of “justice for all.”
“Due Process” as the Embodiment of “Justice for All”
The concept of due process and the ideal of “justice for all” are two fundamental principles that underpin the legal systems of free and just societies. At the core of these principles is the commitment to protecting individual rights and ensuring fair treatment for all citizens under the law. Both concepts are deeply intertwined, serving as the backbone of a just and impartial society.
Due process, a concept firmly rooted in the legal framework, is a safeguard from arbitrary denial of life, liberty, or property by the government. It’s a constitutional guarantee that all legal proceedings will be fair and that no person will be deprived of their rights without a fair procedure. The essence of due process is the right to notice and a reasonable opportunity to be heard and defend one’s rights.
The commitment to due process is directly linked to the promise of “justice for all.” It establishes a level playing field in the court system, ensuring that no one is unduly favored or unfairly disadvantaged. This adherence to process and fairness guarantees that every citizen, irrespective of their social, economic, or political standing, has an equal opportunity to present their case and seek justice.
Through due process, the law is applied uniformly, emphasizing the principle that all are equal before the law. This means that every person, regardless of their status, is subject to the same laws and legal proceedings as anyone else, reinforcing the concept of “justice for all.” It embodies the idea that justice should not be the privilege of the few, but the right of all.
Due process is a bulwark against the arbitrary exercise of power by the state. It prevents individuals from being unjustly targeted or punished without substantial evidence and a fair trial. By doing so, it reinforces the ideal of “justice for all,” ensuring that no person is unjustly deprived of their rights or freedoms.
Due process promotes transparency and accountability in the legal system. It requires that legal proceedings be carried out in a fair, open, and consistent manner, which enhances public trust in the system. This transparency ensures that justice is not only done but seen to be done, thus promoting the ideal of “justice for all.”
Due process is intrinsic to the concept of “justice for all.” It guarantees fair treatment, equality before the law, protection against arbitrary power, and promotes transparency and accountability. Without due process, the promise of “justice for all” would be an empty rhetoric. As such, any society committed to justice must also be committed to upholding and enforcing due process.
“Justice for All” and the Supreme Court
While the phrase “justice for all” is not found in the body of the Constitution, the preamble to the Constitution does present a mandate that the Federal Government will “establish justice.” The Supreme Court has often been tasked with interpreting what “establishing justice” means in various contexts and how it should be applied in practice. Most scholars look at four seminal cases in which the Supreme Court has interpreted and applied this mandate: Marbury v. Madison, Wesberry v. Sanders, Plessy v. Ferguson, and Brown v. Board of Education.
First, Marbury v. Madison (1803) was a landmark case in which the Supreme Court, under Chief Justice John Marshall, affirmed its power of judicial review, the power to declare laws unconstitutional. It was a case where the interpretation of “establish Justice” was at the core. The Court held that it was the very essence of justice to ensure that government acts within the limits of the law, and when it doesn’t, there needs to be a mechanism to check and correct it. Judicial review was therefore seen as an essential instrument of justice, ensuring that the laws themselves and the actions of government are just, fair, and align with the Constitution.
Second, Wesberry v. Sanders (1964) centered on the principle of “one person, one vote,” an essential aspect of democratic justice. In this case, the Supreme Court ruled that electoral districts must be roughly equal in population, ensuring that all citizens’ votes carry equal weight. This interpretation of “establish Justice” reflected the belief that justice in a democratic society requires political equality, where each citizen’s voice matters equally in the public decision-making process.
Third, Plessy v. Ferguson (1896) is a historic case that unfortunately reflects a period when the Supreme Court fell short in its mandate to “establish Justice.” The Court upheld state racial segregation laws for public facilities under the doctrine of “separate but equal.” This decision was a significant deviation from the ideal of justice as it endorsed racial discrimination and inequality, contradicting the Constitution’s guarantee of equal protection under the law.
Lastly, Brown v. Board of Education (1954) is a landmark case in which the Supreme Court rectified its previous stance from Plessy v. Ferguson. The Court unanimously ruled that racial segregation in public schools was unconstitutional, stating that “separate educational facilities are inherently unequal.” This case epitomizes the Supreme Court’s role in establishing justice, as it actively sought to dismantle institutionalized racism or uphold the principles of equality and protect the rights of marginalized communities.
“Justice for all” runs as a vein throughout the Constitution—starting with the preamble’s charge that “We the people” will use the Constitution to “establish justice” and then running through the principles embodied therein. Much of this charge is carried out by the Due Process clauses in the Fifth and Fourteenth Amendments, and it has been left to the Supreme Court throughout U.S. history to further ensure that this commission from the Founders to ensure that there is “justice for all” is carried out.
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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Mandate or Law: The American Founders on Warning Against Arbitrary, Tyrannical Dictates Diluting Rule of Law
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 46: Mandate or Law: The American Founders on Warning Against Arbitrary, Tyrannical Dictates Diluting Rule of Law – 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
In the realm of United States governance, the terms “mandate” and “law” frequently arise, often creating confusion due to their seemingly overlapping meanings. Both play essential roles in shaping the country’s legal and political landscape, yet they are distinctly different in nature and application—and both must be understood within the context of due process of law, both substantive and procedural.
A law, as per the United States Constitution, is a rule established by the government that dictates the actions of its people. It’s a formal norm that has been approved by a legislative body and, if necessary, signed into effect by the executive branch. Laws are codified in written form and are enforceable by the judiciary. In the United States, federal laws apply to all states and territories, while state laws apply only within their respective jurisdictions.
On the other hand, a mandate in the context of U.S. governance often refers to a policy or requirement that a higher level of government imposes on a lower level. For instance, federal mandates require states or localities to perform certain actions, often under the threat of financial or legal penalties. These mandates may come in various forms, including conditions for receiving federal grants, requirements imposed as a part of federal civil rights laws, or conditions for participating in voluntary federal programs.
Unlike laws, mandates do not necessarily have to go through the same rigorous legislative process. Some mandates are issued by federal agencies as regulations, under the authority granted to them by Congress. Others are issued directly by the executive branch, such as through executive orders.
While a law is a directive that comes with its own enforcement mechanism, a mandate is a requirement that may or may not come with specific penalties for non-compliance. Compliance with a mandate is often tied to the receipt of federal funds. For example, states may be required to comply with certain federal mandates to receive funding for highway construction or education.
In the dynamic landscape of American politics and law, it is essential to note that the boundary between mandates and laws can sometimes blur. As such, ongoing vigilance and discourse are required to ensure the appropriate balance—especially given how both laws and mandates can impact “true” law—which can be viewed within the context of the 5th and 14th Amendments’ guarantees of due process for all citizens,
The founding of the United States was a grand experiment, the creation of a republic aimed at securing the rights and liberties of its citizens. Central to this vision was the rule of law, which the Founders intended as a safeguard against arbitrary and tyrannical rule. The United States Constitution thus enshrines due process as an essential component of legal justice, a bulwark against any effort to dilute the power and relevance of law and order. The twin concepts of substantive and procedural due process, while less known to the general public, are pivotal elements of the due process doctrine and serve as vital tools in safeguarding individual liberties.
Before delving into the importance of both substantive and procedural due process, it is crucial to understand the distinction between the two.
Substantive due process is a doctrine that protects citizens from government actions that could interfere with fundamental rights or liberties. It requires the government to justify any intrusion into personal and economic freedoms with a sufficient and compelling state interest. For instance, the right to privacy and the freedom of speech are protected under this doctrine, and any governmental attempt to restrict these rights must meet a rigorous standard of scrutiny.
Procedural due process, on the other hand, is concerned with the fairness of how a law is applied or a decision is made. It safeguards individuals from arbitrary deprivation of life, liberty, or property by ensuring they receive a fair process, which typically involves notice and an opportunity to be heard. Procedural due process thus protects against the abuse of power, ensuring that the rule of law is upheld even when the government takes necessary actions.
The Founding Fathers were acutely aware of the danger posed by arbitrary laws and mandates that had the force of law but lacked the due process of law. They had experienced firsthand the arbitrary rule of a distant monarch and were determined to construct a system of government that would prevent such abuses.
Substantive due process plays an indispensable role in upholding this vision. By requiring the government to justify any infringement on fundamental rights, it ensures that laws and regulations do not arbitrarily or unjustly infringe on individual liberties. This doctrine serves as a shield, protecting citizens from arbitrary laws that could unduly limit their freedoms.
Procedural due process, meanwhile, acts as a sword, enabling citizens to challenge any governmental actions they believe infringe on their rights. By providing a fair and transparent process for reviewing governmental actions, it ensures that citizens have a meaningful opportunity to contest any perceived injustices.
Timothy Sandefur, a legal scholar, has made significant contributions to the understanding of the phrase “due process of law” in the United States Constitution, specifically emphasizing the importance of the term “of law.” He has argued that “due process of law” is not just about the process itself, but also about the substance of the laws that govern that process, a concept commonly known as substantive due process.
One of the key elements of Sandefur’s argument is the idea that “due process of law” should not be understood as merely a procedural guarantee. Rather, it also provides substantive guarantees against “unfairness.” This understanding is rooted in a deeper interpretation of the Constitution, not limited to the literal wording of the document but also considering its structure, ideas, and history. According to Sandefur, the Constitution’s promise that “no person shall be deprived of life, liberty, or property without due process of law” implies not only that the government must adhere to certain procedures when imposing a deprivation, but also that some acts are inherently off-limits for the government, regardless of the procedures used to implement them.
Sandefur also discusses the concept of law in this context. He explains that law is the use of government’s coercive powers in service of a general principle of the public good, and it is the opposite of arbitrariness. The law should not be a self-serving tool of those in power. Therefore, the “of law” in “due process of law” ensures that the government’s actions are guided by lawful principles and not by arbitrary or self-serving motives. A lawful government is characterized by general rules that benefit all, rather than specific commands or actions that only benefit those in power. This principle is a fundamental part of due process of law, guaranteeing citizens protection under the general rules that govern society. In Sandefur’s view, due process of law means that the government may not limit our freedom without good reason. What constitutes a “good reason” is determined by reference to political and legal principles, not merely by legislative whims or self-interest. This view reflects the inherent overlap of “procedure” and “substance” in the understanding of due process of law. To be treated lawfully means to be treated in accordance with general, public principles (substantive) and through established procedures (procedural). Sandefur uses the examples of a vetoed tax bill and a bill establishing an official religion to illustrate the concept of substantive due process. In both cases, even if the procedural steps have been followed, the substantive aspect of the law can make it invalid. The same logic, according to Sandefur, applies to implicit or inherent limits on government power. If the legislature passes a statute that it lacks the authority to make, that statute cannot be considered law, and enforcing it would violate the citizen’s right not to be deprived of life, liberty, or property except by due process of law.
In the end, regardless of whether the government is enforcing a law derived from legislation, or a mandate derived from some other government action, the rights to due process must be respected. Anything short of that respect does serve to dilute “true law” and undermines the protection of the liberty of the people.
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 Consent of the Governed: Upholding Appropriate Boundaries Against Governing by Tyranny
90 in 90 2023, Winfield H. Rose, 6. Guest Constitutional Scholar Essayists, Blog Essay 31: Principle of Consent of the Governed: Upholding Appropriate Boundaries Against Governing by Tyranny – Guest Essayist: Winfield H. Rose, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Winfield H. Rose, 13. Guest Constitutional Scholar Essayists, 90 Day Studies“…that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country…These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further…The sum of my argument is, That civil government is of God…That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature…” – James Otis, Rights of British Colonies Asserted and Proved, pamphlet, 1763.
James Otis, Jr. was born in and lived all his life in Massachusetts. He was a contemporary of both John and Samuel Adams and was a prominent and effective proponent of American independence. He lived from 1725 to 1783.
Known for his pamphlet “Rights of British Colonies Asserted and Proved,” published in 1763, he was very offended by the Writs of Assistance adopted by the British government in 1761. Otis may or may not have coined the phrase “Taxation without representation is tyranny” but he certainly believed and proclaimed it. According to the Smithsonian Magazine (https://www.smithsonianmag.com/history/transformative-patriot-who-didnt-become-founding-father-180963166/),
We say Washington was the father of our country and Madison was the father of the Constitution. According to Adams, we likewise need to say that Otis was the father of our independence.
Tyranny was an issue for our revolutionary forefathers but it was not the primary issue. The primary issue was legitimacy or, more accurately, the lack of legitimacy. The lack of legitimacy created the tyranny under which our American ancestors were then living, and that lack of legitimacy was due to the absence of the consent of the governed. The absence of this consent could have been remedied by the British government’s granting their American colonies representation in Parliament but it was too arrogant and stubborn to do so. They paid for this mistake with the loss of their American empire.
Looking back with hindsight, one may ask why the British made this political blunder. Careful arithmetic would have shown the numerical threshold beyond which they should not go, and they could have granted the Americans a safe number of representatives in Parliament, thereby acquiescing to their demand and quieting the uproar. This would have been a practical solution, but the British were not interested in a practical solution. They adhered to the principle that the American colonists were neither citizens nor subjects but vassals without rights totally subject to rule from London.
One might also reply that each American colony had a legislative assembly, and that is true. But, according to the complaints against the British government Jefferson listed in the Declaration of Independence, by the 1760s those assemblies had been reduced to irrelevance.
We would be remiss if we did not remember that King George III had ascended the throne in 1760 at the age of 22 and that the French and Indian War (1754-1763) was underway at this time. This war and its aftermath created severe financial problems for the treasuries of both Britain and France which, in turn, then led to ill-fated attempts to raise taxes and ultimately to both the American and French Revolutions.
Not only had the French and Indian War been costly to fight, it left the British with a very long western frontier to defend, a frontier that extended all the way to the Mississippi River. This was the time of Daniel Boone when American settlers wanted to move westward past the Appalachians. Defending this frontier was going to be costly. Thereby came the need for tax measures such as the Stamp Act.
A line in the Otis quote at the beginning of this essay is especially informative:
Otis and many others correctly believed the existing British constitution, based on the Glorious Revolution of 1688 and the English Bill of Rights of 1689, was “by far the best now existing on earth.” The problem was that King George III and Parliament had corrupted it (as Edmund Burke correctly observed) and thereby had intolerably violated the natural rights of their fellow citizens in America. When the British created their Commonwealth of Nations many years later, knowingly or not, they followed the principles Otis enunciated in 1763.
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Careful Observance Upon Forming and Executing Laws: Principle of the Rule of Law, Not of Men
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, George Landrith Essay 45: Careful Observance Upon Forming and Executing Laws: Principle of the Rule of Law, Not of Men – 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 LandrithThe Rule of Law comprises a number of important legal doctrines designed to make our governmental system and our society more just and fair. It starts with the idea that we are all equal before the law and accountable to the same laws. But it also includes the concept that those laws should be made in public and not in secret; that the law should be evenly applied and not selectively applied, that all laws must be applied prospectively — meaning a law cannot punish behavior that occurred before the law’s existence; that government power cannot be exercised arbitrarily or capriciously, and that we should all have access to due process and an independent and fair-minded decision maker before our life, liberty or property can be taken from us.
For most of human history, most people have been ruled by individuals who had almost unquestioned power. For example, for much of Europe’s history, it was ruled by kings, who claimed “the divine right of kings” – meaning that no one on earth could question or challenge their rule. Such a ruler could imprison those he or she didn’t like or found annoying simply on a whim. And they had power to make laws that would be applied solely to those they didn’t like or had some grievance with.
Magna Carta officially ended the “Divine Right of Kings” by placing very modest limits on the power of the king. But modest limits on the arbitrary rule of men doesn’t qualify as the Rule of Law.
Fortunately, America’s Founders saw the Rule of Law as a foundational element of the society and nation that they sought to build. Thomas Paine in his seminal work, Common Sense, wrote that “in America, the law is King…” — meaning that there would be no king to rule over Americans. The law, as an impartial standard, would govern Americans.
Part of our national heritage in the Rule of Law means that we ought not care whether we like or dislike the accused, or whether we agree with the politics of the accused. We ought to be concerned only about the law and its equal and fair application. The Rule of Law is a major check against the abuses of government.
Soviet dictator Joseph Stalin once described his totalitarian view of the law as — “show me the man, and I’ll find the crime.” That is obviously not the Rule of Law. That is a prime example of the arbitrary and capricious rule of man.
While America has been an example to the entire world of the Rule of Law, it has not always been perfect in its application. But our commitment to the Rule of Law is noteworthy all over the globe and it has helped to make us “the land of the free and the home of the brave.”
America cannot survive as a beacon of hope and a land of freedom and opportunity for all if the Rule of Law is sacrificed upon the alter of political expediency. Americans of all political stripes must demand that the government play by the rules, live within the limitations placed upon it by our United States Constitution, and honor and uphold the principles of the Rule of Law.
One informal test that can help us judge the relative health of the Rule of Law in our nation is: does the government treat us like subjects or citizens?
Sir Thomas More lived from 1478 to 1535 AD and was an English lawyer, judge, and author. He was a strong and heroic advocate of the Rule of Law. In 1535, More did not attend the coronation of King Henry VIII’s latest wife, Anne Boleyn as Queen. Not attending the coronation was not an act of treason and, in a letter, More had wished the King and his new bride much happiness. And while most of the nation had not attended, More’s absence angered the King because of his reputation and influence.
After a number of failed attempts to punish More for not attending the coronation, the King came up with a plan to entrap More. He demanded that More sign a statement that King Henry was the head of both the nation of England and the Church of England. More had made no statements against the King’s authority, but he was unwilling to sign such a statement because it required him to repudiate his Catholic faith.
More made it clear to the King that he was not refusing to sign because he challenged the King’s authority. He simply was unwilling to repudiate his faith. But this did not matter; the King had him arrested and imprisoned in the Tower of London and eventually executed for treason.
A Man for All Seasons is a play and movie based upon Sir Thomas More’s life. In the play, the King pressures More to sign the statement and promises to pardon him if he will sign. More asks the King, I’ve acknowledged your right to rule and your Queen, “then why does your Grace need my poor support?”
The King’s response was, “Because you’re honest… and what is more to the purpose, you’re KNOWN to be honest. There are those … who follow me because I wear the crown; and those … who follow me because they are jackals with sharp teeth and I’m their tiger; there’s a mass that follows me because it follows anything that moves. And then there’s you….”
Later, a friend of More’s tried to talk him into signing a statement to avoid the King’s wrath by saying, “Oh, confound all this…. Thomas, look at those names…. You know those men! Can’t you do what I did, and come with us, for fellowship?” More responded, “And when we stand before God, and you are sent to Paradise for doing according to your conscience, and I am damned for not doing according to mine, will you come with me, for fellowship?”
Later, Oliver Cromwell tried to bully More into signing the statement. More objected to being bullied and said, “You threaten like a dockside bully.” Cromwell responded, “How should I threaten?” More responded, “With justice.” Cromwell, then replied, “Oh, justice is what you’re threatened with.” Thomas More said, “Then I’m not threatened.” Obviously, More understood that a process focused on right and wrong and justice and fairness would not harm him.
Another interesting conversation in A Man for All Seasons shows why the Rule of Law must protect everyone’s rights — no matter how unpopular or disliked. More’s son-in-law, William Roper, while discussing the Rule of Law and More’s defense of it asked, “So, now you give the Devil the benefit of law!” More responded, “Yes! What would you do? Cut a great road through the law to get after the Devil?” Roper responded, “Yes, I’d cut down every law in England to do that!” Sir Thomas More’s response is both insightful and correct:
More was no fan of the Devil as he was a very religious man and was executed because of his commitment to his faith and refusal to bend to the will of the King. But his point was important and true — we cannot have laws and judicial processes that only protect those that we like or approve of. Even those we despise must be afforded the benefits of the Rule of Law or we do not have the Rule of Law.
Thomas Paine’s description of America as a place where the law is king will hopefully always be true. Our nation’s freedom depends upon it. Thus, Americans who value freedom must, as Thomas More did, uphold, support and champion the Rule of Law. There is no freedom without it.
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Principle of a Judicial Branch for Ensuring Justice Without Political Interference
90 in 90 2023, Eric Sands, 6. Guest Constitutional Scholar Essayists, Blog Essay 43: Principle of a Judicial Branch for Ensuring Justice Without Political Interference – Guest Essayist: Eric C. Sands, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Eric Sands, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThe United States Constitution does not say much about the Judiciary, listing it third among the articles dealing with the main institutions of government. For some, this implies that the Judiciary was intended to be last in order of importance and the most insignificant of the institutions overall. While the three branches were intended to be equal in terms of legitimacy and functionality, they were not equal in terms of power. The Legislature wielded the awesome power of the purse and directed the affairs of government. The Executive held the only slightly less impressive power of the sword and executed the will of the Legislature. But what of the Judiciary? What power does it hold and what was its role in constitutional government intended to be?
One might be forgiven for thinking that Article III was something of an afterthought. There is a sense to the Article of being incomplete and not fully thought out. It begins by saying that the judicial power shall be given to a Supreme Court of the United States, but then leaves a lot unsaid. The Article never defines what the judicial power is or how it is used. It never explains the nature of the judicial power or how the Judiciary might go about using it. Its existence in the Article is a mystery. The Article then goes on to tell us only a little about the Court. Its size will be determined by Congress. Judges will be appointed by the president and confirmed by the Senate. Yet no qualifications are listed to be a Supreme Court Justice. There is no age requirement, no experience requirement. In fact, a person does not even have to possess a law degree.
The Article continues saying that the judges will hold their tenures for life on terms of good behavior, a provision justified to insulate judges from the whims of public opinion that is much more likely to sway the other branches of government. Following this, there is the Cases and Controversies Clause outlining what kinds of cases the Supreme Court can hear. This includes, controversially, cases under the equity power which is not clearly defined by the Constitution. A distinction between original and appellate jurisdiction comes next, followed by some clauses dealing with jury trials and trial for treason. And that is it. Compared to what preceded it in Article I and Article II, this is not much.
The lack of content in Article III, according to one of the Founders, was by design. It was a reflection on the nature of the institution and the more subservient role it played in American constitutional government. In Federalist 78, Alexander Hamilton gave a defense of the Judiciary and argued that the Court possessed neither force nor will, but merely judgment. This made the Court the “least dangerous” branch of government and the least threatening to the Constitution. According to Hamilton, “it proves incontestably that the judiciary is beyond comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks.” This further adds to why the judges need lifetime tenures and such radical independence – it is the only way to ensure justice without the interference of the political branches of government or public opinion.
So, we see the task of the Supreme Court as interpreting the laws passed by Congress, exercising its judgment over what those laws mean and how they should be applied. But is this all? Not according to Hamilton and other Federalists. The Court also had a more fundamental duty to protect the Constitution. It preformed this function through the power of judicial review. Judicial review is the power of the Court to determine that government actions conflict with the Constitution and are, therefore, null and void. It was first used in a Supreme Court case, Marbury v. Madison, but was held to be a part of the Court’s power by many Federalists at the founding. Anti-federalists, such as Brutus, denied that the Court possessed this power and claimed that if it had been intended to give the Court such an extraordinary power, the Founders would have written it into the Constitution. The president cannot not even completely override a bill passed by Congress, so it would be incredible if this unelected body of judges could do what the president could not. If the Framers had intended judicial review, they would have enumerated it.
Federalists countered by saying that the power of judicial review was enumerated when Article III said that the judicial power shall be vested in a Supreme Court. What else could the judicial power be but the power of judicial review? Though it was not stated explicitly in the Article, it was clearly implied in its language. But there was an even stronger argument for judicial review. If the Court lacked this power, how would it play a role in the separation of powers and checks and balances? The Court would effectively be relegated to playing the role of an advisory body, making suggestions to the other branches about constitutionality but not having the power to compel anyone to listen. This would effectively destroy the purpose of an independent judiciary and render the Court not just weak but impotent. Thus, judicial review must be part of the design of constitutional government and a vital part of the principal of the judicial branch.
Principle of an Executive Branch, Strong but a Role Accountable to the People
Benjamin Slomski, 90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog Essay 42: Principle of an Executive Branch, Strong but a Role Accountable to the People – Guest Essayist: Ben Slomski, Benjamin Slomski, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThe delegates who met in 1787 for the Constitutional Convention faced a difficult task when it came to designing the nation’s executive branch. Americans of the time tended to look upon a strong executive with suspicion. This was a natural response, given the previous experience with the English monarchy. Under the Articles of Confederation, there was no independent executive. This lack of a strong executive turned out to be one of the central defects of the Articles. National authority was often just ignored by the states and disobedience towards democratically-enacted laws culminated in Shays’ Rebellion in Massachusetts. Delegates at the Constitutional Convention were challenged with creating an independent executive who would be powerful enough to enforce the laws effectively yet not so strong that he could overpower the other republican institutions of government. The result of this work was the American presidency.
The text of the United States Constitution recognizes the difficult nature of executing the law. Authority is placed in the president by the vesting clause in Article II, Section 1 which states that “The executive Power shall be vested in a President of the United States of America.” This should be contrasted with the vesting clause in Article I, Section I which grants certain legislative authority to Congress: “All legislative Powers herein granted shall be vested in a Congress of the United States.” Congress only receives the legislative powers specifically granted to it in the Constitution. The executive power granted to the president, however, is not limited to certain powers “herein granted.” Some specific examples of the president’s executive power are given in Section 2. He is the Commander in Chief of the military, can pardon crimes against the U.S., and makes treaties with foreign nations, among other powers. The powers listed in Section 2 are not an exhaustive list but rather specific instances of the way in which executive power can be exercised.
Article II, unlike Article I, does not comprehensively detail the scope of the president’s executive power because it cannot be precisely defined. The president’s function is to execute the laws passed by Congress and to “preserve protect and defend the Constitution” as enumerated in the presidential oath of office. What is necessary to enforce the law and defend the nation depends on the innumerable variety of circumstances that will occur in human life. As human beings cannot predict every emergency that might occur, they cannot list every single circumstance in which the executive can act without restricting the president during an unforeseen crisis. Therefore, the Founders wisely left the executive power broadly defined so that the president can act in whatever situation that might arise.
The broad nature of executive power does not mean that the president’s power is unlimited or arbitrary. For the president to have constitutional power to do something, the act must be executive, meaning that it does not make law but carries out existing laws. The president cannot usurp legislative power from Congress just as Congress cannot interfere with the president’s execution of the laws. Presidents also cannot nullify congressional laws by refusing to execute them. The president’s broad power is constrained by the constitutional system in which it is placed. Senate approval is needed for the ratification of treaties and the confirmation of many presidential appointees. Congress can always restrict the president through the denial of funding or impeachment. The Supreme Court can review the constitutionality of executive actions in legal cases. The people retain the ultimate check of voting the president out of office. The president is neither a dictator nor a pawn of Congress.
The constitutional insight that there must be a powerful and independent president who is defined by the executive functions he must perform was expressed well by Alexander Hamilton in Federalist No. 70. Here he wrote that:
Government is ineffective unless its laws are obeyed and individuals will not respect the law unless there is a strong enough executive to ensure there is sufficient force behind the laws. A powerful president is of course needed to command the military and defend the nation from invasion. It is equally important to ensure that the government is well-administered and that laws are enforced consistently and effectively.
The genius of the Constitution is that it reconciles the need for a powerful executive with the constraints of republican government. George Washington embodied this idea as the first president. He recommended legislative measures to Congress, vetoed bills on both constitutional and policy grounds, proclaimed American neutrality between France and Britain, and personally led federal troops to suppress the Whiskey Rebellion. These energetic actions were not taken as the personal prerogatives of a king but rather as the exercise of constitutional power granted by the people to a republican servant. Washington understood the president to be the “Chief Magistrate” who must remain aware “of the confidence which has been reposed in me by the People of United America.” The executive’s power must be wielded with the humility and prudence required of a republican governing statesman.
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Principle of a Legislative Branch Within a System of Government Closest to the People
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Scot Faulkner Essay 41: Principle of a Legislative Branch Within a System of Government Closest to the People – 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 FaulknerIn advocating for establishing the Legislative Branch in the United States Constitution, James Madison and Alexander Hamilton, writing under “PUBLIUS,” stated in Federalist No. 52:
“First. As it is essential to liberty that the government in general should have a common interest with the people, so it is particularly essential that the branch of it under consideration should have an immediate dependence on, and an intimate sympathy with, the people. 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.”
Madison and Hamilton explained how the Legislative Branch was fundamental to Americans remaining in control of their own government in FEDERALIST No. 57:
“The House of Representatives is so constituted as to support in the members an habitual recollection of their dependence on the people. Before the sentiments impressed on their minds by the mode of their elevation can be effaced by the exercise of power, they will be compelled to anticipate the moment when their power is to cease, when their exercise of it is to be reviewed, and when they must descend to the level from which they were raised; there forever to remain unless a faithful discharge of their trust shall have established their title to a renewal of it.”
Binding the Legislative Branch to the people built upon the precedents from America’s colonial period.
The Royal Charter that established Jamestown in Virginia evolved from governance by the Charter holders into governance by the King’s Representative (Royal Governor) and his Advisory Council. When the settlers demanded their own voice, the Virginia House of Burgesses, in 1619, became the first democratically elected legislative body in America.
The House of Burgesses became a proving ground for what would become the U.S. House of Representatives. Drawing upon British tradition, revenue and spending bills originated in the House instead of the “upper chamber.” Drawing from British tradition, the members of the House held their positions for short periods of time, the better to be held closely accountable by those they represented.
Tying government closely to the people is foundational to America. The reason America is a “federal” system, and not a “national system,” is to preserve state and local government. This assures most public policy and public activity is closest to the people it serves and reflects their diversity. Serving a New York City neighborhood is very different from serving a rural community in Montana.
America’s diversity is embodied in our nation’s motto: “E Pluribus Unum” – out of many, one. Governing the nation of America is institutionalized in the Tenth Amendment of the U.S. Constitution:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Today, America is governed by 87,576 local units. This includes 3,034 counties, 19,429 municipalities (cities, towns, villages), 16,504 townships, 13,506 school districts, and 35,052 special districts (such as water & sewer, fire, and conservation).
Except for Switzerland and Germany, European governments are national. Their policy and programs are based on “one size fits all.” National governments ultimately amplify regional and ethnic tensions. England’s Acts of Union with Scotland (1707) and Ireland (1801) spawned countless conflicts. Today, Scotland and Wales have separate Parliaments. Ireland divided itself into a Free State and Northern Ireland in the wake of years of violence (1921). England leaving the European Union in January 2020 reflected what happens when a weak parliament was dominated by a powerful and unaccountable bureaucracy.
America’s federal structure, emphasizing government closest to the people, was chronicled by the Frenchman, Alexis Clerel, the Viscount de Tocqueville.
“Democracy in America” was published in two volumes (1835 and 1840). It remains a foundational document describing how Americans benefit from local government.
“The village or township is the only association which is so perfectly natural that wherever a number of men are collected it seems to constitute itself. The town, or tithing, as the smallest division of a community, must necessarily exist in all nations….”
“….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.”
de Tocqueville recognized how Americans preserving local governance serves as a model for a better world:
“I believe that provincial [local] institutions are useful to all nations, but nowhere do they appear to me to be more indispensable than amongst a democratic people.
The only nations which deny the utility of provincial [local] liberties are those which have fewest of them; in other words, those who are unacquainted with the institution are the only persons who pass a censure upon it.”
Thanks to the strength of local government, America remains an inspiration for all those who seek free and open societies.
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Principle of Duty of the American People to Continually Maintain Checks on Government Power
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Scot Faulkner Essay 40: Principle of Duty of the American People to Continually Maintain Checks on Government Power – 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 FaulknerOn November 19, 1863, President Abraham Lincoln spoke immortal words about the eternal mission for all Americans: “that government of the people, by the people, for the people, shall not perish from the earth.”
Citizens holding government accountable begins with knowing what their government, at all levels, is doing.
Two long-standing legal concepts provide the framework for citizens being eternally vigilant and government officials being consistently accountable: government documents should be public and government meetings should be public.
During the Virginia Ratifying Convention for the United States Constitution, Patrick Henry asserted public knowledge was the bulwark of protecting freedom, “The liberties of a people never were, nor ever will be, secure, when the transactions of their rulers may be concealed from them.”
“Where are your checks in this government?…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.”
Patrick Henry’s linkage of protecting liberty to citizen access echoed James Madison’s commentary in Federalist 49:
“As the people are the only legitimate fountain of power, and it is from them that the constitutional charter, under which the several branches of government hold their power, is derived, it seems strictly consonant to the republican theory, to recur to the same original authority, not only whenever it may be necessary to enlarge, diminish, or new-model the powers of the government, but also whenever any one of the departments may commit encroachments…it must be allowed to prove that a constitutional road to the decision of the people ought to be marked out and kept open.”
Madison raised concerns about those who aspire to unbridled power.
“The same influence which had gained them an election into the legislature, would gain them a seat in the convention. If this should not be the case with all, it would probably be the case with many, and pretty certainly with those leading characters, on whom every thing depends in such bodies…it is the reason, alone, of the public, that ought to control and regulate the government.”
Public access to view the proceedings of House and Senate began in December 1795.
The rapid growth of the Federal Government during President Franklin Roosevelt’s “New Deal” raised concerns about public access to Executive Branch documents and proceedings. Many of Roosevelt’s new agencies had unprecedented powers to create laws and regulations outside the reach of Congress. On June 11, 1946, the Administrative Procedures Act (APA) was enacted to re-establish balance between the Legislative and Executive Branches. The APA also outlined how the public would be informed and allowed to comment on Executive Branch actions:
The APA had its limitations as bureaucrats continually found ways to avoid compliance. A more explicit federal law mandating public access to unclassified government meetings, was the Government in the Sunshine Act which was enacted September 13, 1976. Similar “Sunshine Laws” were enacted among state and local governments. However, to this day, citizens still have to file lawsuits to enforce public access as elected and appointed officials fail to provide “adequate public notice” to hide questionable actions.
The practice of the public accessing of public documents began on December 2, 1766, ten years before the American Revolution. Sweden passed the “Freedom of the Press Act.” Among other things—it gave Swedish citizens access to uncensored government documents. This was the first “freedom of information” law in history.
The world’s first law requiring “publicity for official documents” was initiated by the Finnish-Swedish enlightenment thinker Anders Chydenius, a member of the Swedish Diet (Parliament).
“No evidence should be needed that a certain freedom of writing and printing is one of the strongest bulwarks of a free organization of the state, as, without it, the estates would not have sufficient information for the drafting of good laws, and those dispensing justice would not be monitored, nor would the subjects know the requirements of the law, the limits of the rights of government, and their responsibilities. Education and ethical conduct would be crushed; coarseness in thought, speech, and manners would prevail, and dimness would darken the entire sky of our freedom in a few years.”
Chydenius’ Freedom of Print Act was intended to vitalize political discussions. To achieve this objective, Chydenius asserted it was essential that the citizens had access to official documents in order to see how the state was run. Seven of the ordinance’s fifteen paragraphs were dedicated to detailing this public access.
While the Administrative Procedures Act in America mandated information access, it rarely happened. Formalizing “Freedom of Information Access” for American citizens took longer. The American Society of Newspaper Editors commissioned Harold L. Cross, legal counsel for the New York Herald Tribune, to investigate the issue of excessive government secrecy. Cross’s 1953 report was published as a book titled The People’s Right to Know.
Cross wrote that virtually every part of American government operated under what amounted to an “official cult of secrecy”; that this secrecy had become “a breeding ground for corruption; that it was leading to a rise in public mistrust in government; and that all of these things combined were doing serious damage to American democracy itself.” Cross’s 400-page report made the case that Congress must craft new legislation that gave American citizens greater access to the inner workings of their government. In the early 1950s, The People’s Right to Know became a manual for the blossoming “freedom of information” movement.
In 1955, former businessman John Moss (D-CA) began a 12-year effort to codify Cross’s recommendation by passing the Federal Freedom of Information Act (FOIA).
On June 20, 1966, it passed the House of Representatives (306 to 0). It was then sent on to President Lyndon Johnson.
Johnson opposed the legislation but allowed it to become law on July 4, 1966.
On this 4th of July, we should celebrate this milestone in the public’s power to observe government decisions and maintain checks on government power.
It reminds us that citizens must remain constantly vigilant to protect our God-given rights.
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Principle of the Separation of Powers, Involving Checks and Balances on Those Powers
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Patrick Garry Essay 39: Principle of the Separation of Powers, Involving Checks and Balances on Those Powers – 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 GarryThe United States Constitution creates a government with three separate branches, each vested with different powers and responsibilities for different functions. This particular structure reflects the doctrine of separated powers. The Framers adopted this doctrine so as to diffuse government power and thereby protect individual liberty from government encroachment. Congress possesses the authority to make laws; the President has the duty of executing those laws; and the courts interpret and apply those laws in cases brought before the judiciary.
By creating three competing branches, the separation of powers scheme uses the power of each independent branch to check and restrain the power of the other branches. In this way, there is a self-executing structure built into the constitutional scheme that restrains any one branch from abusing its power to the detriment of individual liberty.
The Supreme Court has recognized the importance of the separation of powers principle. This principle, according to the Court, “is at the core of American ideology” and is “as fundamental as the vote or representative government.” Separation of powers provides a system of checks and balances, as well as a guard against improvident or impetuous government action. The separation of powers principle seeks to control government power by splitting it among three different functions and branches, with each branch confined to the exercise of its own function and not allowed to encroach on the functions of the other branches.
Separation of powers does more than just accomplish the negative function of preventing abuses of power; it also achieves a number of positive functions. These functions include allowing a wide-ranging political presentation of diverse interests, leading to a broad-based consensus across a diverse republic, as well as promoting the distinctive qualities associated with each branch. Separation of powers helps the government to be deliberative, representative, and accountable. It helps slow down the lawmaking process so that it can be responsive to all the various constituencies in a large democracy. Such a checks-and-balances system makes it more difficult for the government to act unless there is widespread agreement that it should do so.
The separation of powers principle reflects the Framers’ fear of centralized power, which in their experience had led to tyranny. In this respect, the Framers were very much influenced by the earlier writings of French philosopher Baron de Montesquieu, who wrote that “when the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty.” Throughout its deliberations, the Constitutional Convention remained steadfast in the belief that governmental power should be separated and balanced among the three branches of government, as recommended by Montesquieu.
The Framers foresaw that the separation of powers structure, by placing impediments in the path of the political process, would help to restrain the excesses of lawmaking. Although this structural bias in favor of the status quo would naturally defeat a few good laws, it would even more importantly prevent a number of bad ones.
The judicial enforcement of separation of powers was greatly weakened during the New Deal of the 1930s, when the courts acquiesced in the dramatic expansion of the federal executive branch’s powers and activities. To combat the Great Depression, the New Dealers in President Franklin Roosevelt’s administration significantly expanded the administrative state. This expansion contradicted traditional notions of separation of powers, since the newly empowered administrative agencies combined all three functions in their rulemaking and adjudicative activities. Contrary to the beliefs of the founding era, strong executive government was seen not as a threat to liberty but as a savior of society, and the agents of that saving power were the administrative agencies. But to enable those agencies to perform that role, the Court had to sanction the granting of wide, virtually undefined powers. The Court also had to approve the combination of all three functions within each individual agency. Not surprisingly, the rise of the administrative state meant the corresponding decline of the separation of powers principle.
As a result of the erosion of separation of powers during the New Deal period, the administrative state has grown to the point of being called the “fourth branch” of government. However, contrary to the idealistic hopes of the New Dealers, agencies are often rigidly bureaucratic and cravenly political. But out of perceived necessity for meeting the demands of modern society, the courts have accepted, as a constitutional matter, the administrative state. Moreover, it is perhaps not surprising that – the more the administrative state contradicts separation of powers principles – the more abuses of power and infringements on liberty occur.
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Principle of Free Government and Free Society
90 in 90 2023, Adam Carrington, 6. Guest Constitutional Scholar Essayists, Blog Essay 38: Principle of Free Government and Free Society – Guest Essayist: Adam Carrington, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Adam Carrington, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesAbraham Lincoln concluded his famous Gettysburg Address with the hope that “government of the people, by the people, for the people, shall not perish from the earth.”
Why would such a government perishing be so bad? After all, myriad regimes have started, fallen, and now are no more–no better than a footnote in history books. Moreover, a popular government, one so focused on the people, hasn’t been the norm for most of human history.
But we should not merely be looking for the most famous nor the most common governments. We should be looking for the best. Lincoln here does that. For he describes the essential components needed for a free society and a free government.
Lincoln summarizes America’s political principles through three phrases each focused on the people. Each builds off a central assumption about human beings, namely that they are inherently equal. Thus, the origin of political rule, the administration of political rule, and the purpose of political rule all must be grounded in the famous phrase of the Declaration of Independence that “all men are created equal.”
For Lincoln, “Of the people” says that our government originates from the body of citizens. The people pre-existed the government and consciously created that government. This point matters greatly. In political philosophy, much is said about the nature and location of sovereignty–ultimate, unrivaled authority to rule. Lincoln here succinctly says that the people are sovereign, that political power originates with them. The authority of governments, by contrast, is delegated, derivative of the people’s power. Nor was the government the creation of one proto-king or a few elites. The people together were the source.
We here have a basis for freedom. If the government created the people, then we would exist to serve it. But if the people establish the government, then that government must serve us. Or if one or a few had done so, the rest of us would be subject to him or to them. Our United States Constitution, which begins “We, the People,” makes clear the origin of the government’s power is from us.
“By the people” declares the means through which government exercises its power. The focus remains on the people. For a government by the people means that citizens administer the government they created. They do not merely leave it to others but engage in active self-rule. We do so in three main ways. First, we all can engage in discussion with each other in hopes of learning from and persuading with our neighbors. Second, do so through voting for those who will directly exercise our power in office. Third, and related, we can self-govern by holding office.
This point also matters for a free society and a free government. The Founders understood that human nature struggled with a temptation to selfishness. Monarchy risked one man ruling for his own good at the expense of the rest. Aristocracy threatened a few elites wielding political power only to help themselves. A popular government sought to direct such self-interest toward the good of the greatest number. At its best, this popular rule by the people would pursue what is called the “common good.” The Founders knew that the people also could be selfish and thus that the majority could harm the minority. But they thought the majority will would mirror the common good more often than the whims of one or a few. And they put in place systems like representation, federalism, and separation of powers to mitigate such selfish tendencies from having free reign even in popular rule.
Finally, “for the people” states for whom the government acts. All governments are “for” someone within their borders. They make laws and enforce them with the good of this group in mind. In acting for the people, Lincoln assumes that popular government should be oriented toward the good of all its citizens. Here we see the underpinnings of the Constitution’s commitment to “promote the general Welfare” as described its Preamble. Just as rule did not originate with one person or a few, nor was it administered by one or a few, so our government would not seek the benefit of one or a few. Our belief that government exists to protect natural or human rights, summarized as life, liberty, and the pursuit of happiness, forms the core of what Lincoln meant by government existing “for the people.” And in protecting those rights, we can rest secure in our freedom, exercising it in pursuit of a happy life.
Thus, we, too, should hope that this kind of government does not perish from the earth. We have been blessed in that government’s establishment by our ancestors and its maintenance by those who came before us. We have not sunk into despotism because we have not lost the grounding of political power and purpose in the people. At the same time, we always face the risk of losing this precious gift. It remains to us to keep our republic, guarding it from all foes external and internal. The task is up to us. We are the people, after all.
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Of the People, by the People, and for the People: Founding a Representative Government in America, Not Hereditary Succession
90 in 90 2023, Ron Meier, 6. Guest Constitutional Scholar Essayists, Blog Essay 37: Of the People, by the People, and for the People: Founding a Representative Government in America, Not Hereditary Succession – 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
“…for it is impossible to discover superiority of right in any family, by virtue of which hereditary government could begin… It is one step toward liberty, to perceive that hereditary government could not begin as an exclusive right in any family…With respect to the first of these heads, that of a family establishing itself with hereditary powers on its own authority independent of the nation, all men will concur in calling it despotism…It operates to preclude the consent of the succeeding generations, and the preclusion of consent is despotism.” – Thomas Paine, Dissertation on the First Principles of Government 1795.
While the King and Parliament were visible primarily through their Colonial Governors, they had been directly visible to Paine in England before his emigration to the colonies. Paine was familiar with hereditary succession and was opposed to that idea, as he later wrote in the Dissertation quoted above. King George III was the grandson of King George II; George III might have been George IV had not his father died in 1751, nine years before his grandfather died, making George III the heir to the Throne. George III ascended to the Throne at the age of 22.
The impact of the laws of Parliament and the King on the ordinary British citizen had encouraged Paine to publish his pamphlets critical of the “abuses and usurpations” enforced on British citizens there. Thus, while he had minimal direct knowledge of the American colonies’ political affairs, he had significant direct knowledge of the impact of the British political policies in Britain, giving his words in the colonial pamphlets a great deal of significance. The timing of his arrival and his ability to communicate effectively to the colonists while they were in an excellent position to declare independence were the keys to the impact his “Common Sense” pamphlet had on the colonies.
The first two chapters of Common Sense focused on the purpose of government, the English Constitution, the monarchy and hereditary succession, and how those factors made living under British rule difficult for all and intolerable for some. His pitch was emotional at a time of heightened emotions in the American colonies. On the first page, he states that “government even in its best state is but a necessary evil; in its worst state an intolerable one. We furnish the means by which we suffer.”
He states that “the design and end of government is freedom and security.” Paine argued that the British government was filled with both “monarchical and aristocratical tyranny.”
Paine presents scathing attacks on the monarchy with scriptural references very familiar to the colonists. Christian faith and tradition were strong in the colonies and all knew of the chaos of the era of Israelite Kings and how, in just three centuries, that chaos resulted in the destruction of the Temple and the exile. He states that “monarchy is ranked in scripture as one of the sins of the Jews.” He differentiates King David from other Israelite Kings in that David “was a man after God’s own heart.”
He attacks hereditary succession, stating that “all men being originally equals, no one by birth, could have a right to set up his own family, in perpetual preference to all others forever.” He observes that usurpation, rather than selection by lot or by election, has been the most common method of ascension to the throne, and that original sin and hereditary succession are parallels. The then-common idea that hereditary succession preserves a nation from civil wars is quickly debunked. Monarchy and succession are a form of government leading to “blood and ashes.”
In Chapter 2, Paine leaves some hints for the institution of a republic and for the necessity of a “house of commons” in the future nation.
In Chapters 3 and 4, Paine turns toward the present state of affairs in the American colony. Here he builds a strong emotional case for “Independency.” He states that the 1775 British attacks on Lexington, Concord, and Bunker Hill made all attempts at reconciliation void and that “the period for debate is closed; arms must decide the contest.” He first supports the economic and trade arguments for separation. The British attempts to “tax without representation,” to reimburse the costs of British protection of the American colonies, are for the benefit of the colonies’ exclusive trade arrangements with Britain. By declaring independence, the American colonies would then be an open trade port to all nations.
In addition, severing the exclusive alliance with Britain would eliminate the risk that Americans might be enlisted into wars with Spain and France. Paine notes that only about 1/3 of the colonies are inhabited by English descendants, but that people fleeing tyranny from all of Europe have sought a new life in America. He states that “everything that is right or natural pleads for separation.”
Paine focuses on the fact that April 19, 1775 forever destroyed the ability of the colonies to reconcile with Britain. He asks, “can you still shake hands with the murderers?” He quotes Milton, “never can true reconcilement grow where wounds of deadly hate have pierced so deep.” Repeated petitioning has consistently failed. He observes that “there is something absurd in supposing a continent to be perpetually governed by an island.”
Paine makes a strong argument that laws, made by the people of America, should be King, not laws made by a King and Parliament thousands of miles distant, laws that reflect the King’s premise that “you shall make no laws but what I please!” He presents a plan for government after independence, a plan for representative government that was unlikely to be adopted, but that may have had some influence on the Declaration of Independence and the Articles of Confederation. Thomas Jefferson may have made note of Paine’s suggestion for “a mode of government that contained the greatest sum of individual happiness” as he wordsmithed the Declaration of Independence.
Paine makes the case for America’s ability to build, supply, and maintain a Navy equal or superior to Britain’s Navy; that was possible due to the abundance of natural resources in the large, largely unexplored nation. America’s abundant natural resources also could be exported to all nations in exchange for gold and silver.
He argues that the current infant state of the colonies is advantageous for independence; it is easier to unite a small nation now than a large one later. An interesting point he makes about equal representation, which ultimately led to two Senators per state, resonates today; specifically, that unequal representation of large and small counties in Pennsylvania could have resulted in Pennsylvania’s laws being decided by only two counties in the state.
While the elected representatives to the Continental Congress were focused on applying reason and diplomacy to resolve the dispute with England, Paine understood the passions of the citizens and used his pen and press to stir their emotions to pressure their representatives to choose independency rather than reconciliation.
Sources:
Stamp Act – Fact, Reaction & Legacy (history.com)
Britain Begins Taxing the Colonies: The Sugar & Stamp Acts (U.S. National Park Service) (nps.gov)
What Was the Olive Branch Petition? – History of Massachusetts Blog
Paine, Thomas. Common Sense. New York: Fall River Press, 1995
John Adams looks back on Thomas Paine’s Common Sense, autobiography, early 1800s (americainclass.org)
Principle of Representative Government Under Direction of the People Rather Than King Rule
90 in 90 2023, Ron Meier, 6. Guest Constitutional Scholar Essayists, Blog Essay 36: Principle of Representative Government Under Direction of the People Rather Than King Rule – 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 Studies“But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.” – Thomas Paine, Common Sense, February 14, 1776.
It would be easy to conclude that the Declaration of Independence had been in development for a decade and simply finalized in the summer of 1776. The 1764 Sugar Act and the 1765 Stamp Act were the first in a long series of “repeated injuries and usurpations” cited in the Declaration of Independence in 1776.
In fact, over the decade, numerous reconciliation appeals were made to the King of England to redress colonists’ grievances; the colonists were British citizens and wanted to remain so. It took a decade for the Continental Congress to be convened. Although the colonial militia had effectively defeated the British armed force in April 1775, the militia suffered defeat on Bunker Hill in June 1775. Therefore, one of the first acts of the Second Continental Congress was to pass the “Olive Branch Petition” in July 1775, an attempt by the colonies to avoid escalation into a full-scale war.
The Olive Branch Petition expressed loyalty to the King to avoid a larger war. The British Army and Navy were formidable and no American Army or Navy existed. To declare war on Britain in 1775 would have seemed an irrational act for a group of independent colonies. The delegates to the Continental Congress knew world history and knew that the odds of military success were slim to none should the British government send its Army and Navy in overwhelming force to defeat America’s militia. Debates for and against independence were vehement over the subsequent months, but the general mood was against declaring independence.
As happens frequently in world history, a single, unexpected spark turns events. Casual observers of recent American history can identify such events in our lifetimes, including 9.11, the fall of the Berlin Wall, the sudden collapse of the Soviet Union, the Russian invasion of Ukraine, among many others. So it was with the American Revolution.
That unexpected spark could not have been predicted. A man, Thomas Paine, arrived in America from England in November, 1774. He knew little about the American colonies and he was unknown among the members of the Continental Congress.
Paine’s personal and business life in England was unremarkable. However, he engaged in what today would be called political activism; in the 18th century, publishing political pamphlets was the common method used by political activists. His political publishing activities in Britain enabled his introduction to America’s best known publisher then residing in Britain, Benjamin Franklin; Franklin encouraged Paine to strike out for America where his political activism might be put to better use – and where he might escape persecution by the British government.
Franklin’s letter of introduction proved invaluable in getting Paine immediately employed in the publishing business in Pennsylvania. His political activism in England, against a common adversary, the King, enabled Paine to rapidly understand the American issues and turn those issues into political pamphlets in the colonies. The 1775 battles in the Massachusetts colony, however, didn’t seem to move the needle politically; America’s Continental Congress, and most colonists, continued to seek Reconciliation, not Revolution. As Paine’s frustrations grew, he published a new pamphlet, distributed throughout the colonies in January, 1776. That pamphlet was called Common Sense.
Paine was not an intellectual philosopher. His writing style was directed towards the common man, of which he was one. Well over 100,000 copies of Common Sense circulated in the colonies. King George’s declaration that the American colonies were in open rebellion against the Crown arrived in the same month that Common Sense was published.
Paine had not been present during the preceding decade of colonial angst regarding the suppression of British rights in the American colonies. However, the timing of his arrival in Pennsylvania, his recommendation by Benjamin Franklin, and his history of stirring political emotions in England against the King and Parliament proved beneficial. He arrived after the Boston Tea Party and the King’s enactment of the “Intolerable Acts,” and after the assembly of the First Continental Congress. Only months later, the battles of Lexington, Concord and Bunker Hill would stir the colonists’ passions more strongly against the dictates of a King on the other side of an ocean. “No taxation without representation” reflected the colonists’ views that the time for representative government of the people rather than rule by King had come.
Sources:
Stamp Act – Fact, Reaction & Legacy (history.com)
Britain Begins Taxing the Colonies: The Sugar & Stamp Acts (U.S. National Park Service) (nps.gov)
What Was the Olive Branch Petition? – History of Massachusetts Blog
Paine, Thomas. Common Sense. New York: Fall River Press, 1995
John Adams looks back on Thomas Paine’s Common Sense, autobiography, early 1800s (americainclass.org)
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Principle of Meritocracy and Its Importance Within the Framework of the U.S. Socio-Economic and Political Systems
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 35: Principle of Meritocracy and Its Importance Within the Framework of the U.S. Socio-Economic and Political Systems – 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
In the grand scheme of social ideals, meritocracy reigns as one of the most impactful principles, fostering a society where individuals rise to prominence and power based on their abilities and achievements, rather than birthright or privilege. The principle of meritocracy underscores the very foundation of a fair society, where hard work, talent, and innovation are rewarded. It is pivotal in maintaining a free and prosperous society, and here’s why.
Firstly, meritocracy promotes equality of opportunity. In a true meritocracy, everyone has the chance to succeed based on their own merit regardless of background. This allows for a leveling of the playing field, granting each person the right to rise according to their abilities and efforts. A society that champions meritocracy encourages individuals to strive for their best, fostering a culture of hard work, resilience, and ambition.
Secondly, meritocracy fuels innovation and economic growth. When individuals are rewarded based on their talent and efforts, they are incentivized to innovate, create, and perform at their best. This, in turn, stimulates economic growth and prosperity. History is rife with examples of societies that flourished when merit was rewarded – from the rapid technological advancements of the Silicon Valley tech giants to the economic miracles witnessed in post-war Japan and Germany.
Thirdly, meritocracy ensures the most competent individuals lead. In a society where leadership roles are based on merit, the most qualified, skilled, and effective leaders rise to the top. This promotes better decision-making, efficiency, and performance in both public and private sectors, leading to overall societal improvement.
While the term “meritocracy” was not in use during the time of the Founding Fathers, their actions and beliefs make it clear that they championed the principles that underpin this concept. Through their personal examples and the institutions they established, they laid the groundwork for a society that values individual ability and achievement. It is this foundation that has allowed the United States to continually strive towards the ideal of a meritocracy, where everyone has an equal opportunity to succeed based on their own merits and abilities.
It is clear, however, that concept of meritocracy was implicit in their writings and actions. Meritocracy resonates deeply with the democratic ideals that the Founding Fathers held. Their approach to this concept, while not explicitly labeled as meritocracy, can be discerned through a careful examination of their actions, writings, and the institutions they established.
The Founding Fathers, including individuals such as George Washington, Thomas Jefferson, and Benjamin Franklin, all demonstrated a belief in the power of individual merit. This belief was deeply rooted in the Enlightenment, a period of intellectual and philosophical development that greatly influenced their thinking.
George Washington, for example, rose to prominence not because of inherited wealth or title, but due to his leadership abilities and military acumen during the Revolutionary War. He was a model of the self-made man, a figure that would become emblematic of the American Dream, and his leadership was a testament to the power of merit.
Thomas Jefferson, the principal author of the Declaration of Independence, held a belief in the natural rights of man. He stated that “all men are created equal,” indicating that everyone should have the same opportunities for success. This belief aligns with the principles of a meritocracy, which values individuals based on their achievements rather than their social status or wealth.
Benjamin Franklin was perhaps the most explicit proponent of meritocratic ideals. He was a vocal advocate for education, believing it to be the key to social mobility and individual improvement. Franklin’s establishment of public institutions like libraries and universities was a practical embodiment of his belief in the power of self-improvement and personal merit.
The Founding Fathers not only championed the concept of meritocracy in their personal lives but also institutionalized it in the formation of the American political system. The U.S. Constitution, which they crafted, has several meritocratic elements.
For instance, there are no hereditary offices in the U.S. government, meaning that one cannot inherit a position of power. This provision was a clear departure from the monarchical systems of Europe where power was often passed down through generations. Instead, public offices in the U.S. are filled through elections, with the aim of choosing the most qualified individuals, a clear nod to meritocratic principles.
The system of checks and balances, another cornerstone of the U.S. Constitution, is also implicitly meritocratic. It requires that individuals in power continually demonstrate their abilities and merits in order to maintain their positions. This system promotes accountability and discourages complacency, further emphasizing the importance of merit over inherited status.
In a society where positions and rewards are distributed according to merit, the concept of meritocracy reigns supreme. It’s a system that believes in the power of hard work, talent, and ambition, asserting that each individual, regardless of their background, has the potential to climb the societal ladder based on their capabilities. But what happens when we abandon this principle? How does it affect our political and economic landscapes?
Politically, abandoning meritocracy may lead to a shift in power dynamics, affecting the governance of a nation. In a meritocratic society, leaders are chosen based on their abilities, credentials, and proven track records. They have demonstrated their competence and capacity to lead, fostering a sense of public trust. If we abandon this principle, we risk ending up with leaders who might not possess the necessary skills or experience. There’s a potential for nepotism and cronyism to take root, as appointments might be influenced by personal relationships rather than professional competence. This could erode public trust and potentially destabilize political systems.
Economically, meritocracy is a key driver of innovation and productivity. When rewards and advancements are tied to performance, it encourages individuals to improve their skills, innovate, and work efficiently. Removing this incentive might lead to a decline in overall productivity. Furthermore, it could also result in an inefficient allocation of resources. If jobs and promotions are not given based on merit, then the most competent individuals may not end up in positions where their skills are best utilized. This inefficiency can slow economic growth and development.
Abandoning meritocracy also brings up concerns about fairness and social mobility. Meritocracy, at least in theory, offers an equal playing field, allowing individuals from any background to succeed if they have the ability and put in the effort. Without it, those from privileged backgrounds may have an unfair advantage, leading to increased social inequality and a decrease in social mobility.
Like so many other aspects of American society, the embedding of the principles of meritocracy within our political and economic systems have yielded enormous benefits. Abandoning those principles would be foolish, and have terrible consequences in the near and long term.
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 Equality Over Equity
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 34: Principle of Equality Over Equity – 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 LangerThe principle of equality, a cornerstone of democratic societies, is deeply rooted in the idea of “equal opportunity” – the notion that everyone should have a fair shot at success. This concept is fundamentally distinct from the ideology of “equal outcomes,” which guarantees identical results for everyone, irrespective of effort, talent, or innovation. Equality of outcome is a seductive concept; it promises a world without disparity or struggle. However, this notion undermines the core tenets of free markets, competition, and innovation that have been the driving force behind American society’s economic prosperity and advancement.
The Declaration of Independence’s statement that “all men are created equal” signifies that all individuals are endowed with the same inherent rights and that they are equally worthy of respect and dignity. This phrase is generally interpreted as a call for equal treatment and opportunities, rather than a guarantee of identical results.
This profound statement, however, does not imply that all men will achieve equal outcomes. Rather, it signifies that all men are endowed with the same inherent rights and that they are equally worthy of respect and dignity. It is a call for fair treatment and equal opportunities, not a guarantee of uniform results.
The Constitution of the United States, a document drafted by forward-thinking individuals who appreciated the dangers of tyranny, does not promise equal outcomes. Rather, it guarantees equal rights and opportunities. This foundational text ensures that every citizen has the same fundamental rights, echoing the Declaration, that of life, liberty, and the pursuit of happiness. The Constitution is essentially silent on the matter of ensuring equal outcomes, a silence that underscores the drafters’ understanding of human nature and the importance of individual agency, meritocracy, and free market principles.
Renowned Constitutional scholars also reflect on this difference. They argue that the Constitution’s promise of equality under the law is not a guarantee of equal outcomes. Instead, it is a promise of equal treatment, a commitment to impartiality and fairness. Legal scholar Robert H. Bork, for instance, argued that “In terms of the Constitution, ‘equality’ refers to the equal protection of the laws,” which does not extend to ensuring uniform outcomes in life.
The free market system, an essential aspect of our society, thrives on the principles of competition, innovation, and consumer choice. The market is a dynamic system that rewards efficiency, innovation, and hard work. It is a platform where individuals can compete on a level playing field, leading to the creation of new products, improved services, and economic growth. A guarantee of equal outcomes would stifle this dynamism, extinguishing competition, and discouraging innovation.
In contrast, the concept of equality of outcomes rests on the notion that everyone should have the same level of material wealth and social standing, regardless of their individual efforts or abilities. This idea, seductive in its apparent fairness, is a cornerstone of many communist philosophies. However, in practice, it has often led to disastrous consequences, both economically and culturally.
Consider the Soviet Union, a nation that wholeheartedly embraced the principle of equality of outcomes. Despite initial hopes for prosperity and fairness, the Soviet economy was characterized by stagnation, inefficiency, and widespread poverty. The central planning that drove the Soviet economy disregarded the intricate web of individual desires, talents, and efforts that naturally guide economic activity. This resulted in a mismatch of supply and demand, with shortages of basic goods and services becoming the norm.
When the rewards of hard work and innovation are stripped away, the incentive to strive for excellence diminishes. A system that does not reward individual effort or skill discourages initiative and creativity. The Soviet Union suffered from this stifling of innovation, with its technology and industries lagging behind those of its Western counterparts.
The cultural implications of equality of outcomes are no less severe. When outcomes are predetermined, competition becomes a threat rather than a source of motivation. This breeds resentment and hostility, turning people against each other in a society that should foster cooperation and mutual respect. In the Soviet Union, the state’s intrusive control over every aspect of life led to widespread distrust and fear, further fracturing social unity.
Moreover, the pursuit of equality of outcomes often necessitates a powerful central authority to enforce redistribution. This can lead to the concentration of power in the hands of a few, ironically fostering a new form of inequality. In the Soviet Union, this led to an authoritarian regime marked by brutal repression and a disregard for individual liberties.
As former Congressman and Director of the Office of Management and Budget David Stockman noted in his book, “The Triumph of Politics”:
The pursuit of equality of outcomes in the Soviet Union and other similar regimes resulted in economic inefficiency, social division, and the undermining of individual liberty. These historical examples serve as a stark reminder of the potential dangers of such an approach.
Critics argue that the pursuit of equality of opportunity can still lead to significant disparities in outcome. This is undoubtedly true. However, it is essential to remember that the goal is not to eliminate disparity but to ensure that these disparities are not the result of arbitrary discrimination or unfair practices. Moreover, a certain level of inequality can serve as a motivating factor, encouraging individuals to strive for betterment, to innovate, and to contribute to society’s progress.
The principle of equality of opportunity, rather than equality of outcomes, promotes a healthier society. It encourages personal growth and accountability, rewards hard work and innovation, and respects individual liberty. This principle aligns with the Constitution’s guiding tenets and the Declaration of Independence’s profound assertion that “all men are created equal.”
In conclusion, a focus on equal outcomes can lead to unintended consequences, including stifled innovation, suppressed competition, and a disregard for individual liberty and choice. Conversely, a commitment to equal opportunity fosters a dynamic society where individuals are free to chart their own paths, innovate, and contribute to societal progress. The Constitution and our nation’s founding documents endorse this principle of equal opportunity, a principle that has been instrumental in shaping the American ethos of liberty, hard work, and individualism. This is the path we must continue to tread.
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 Limited Government: Why the United States Constitution Is Designed To Prevent Centralized Power
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Patrick Garry Essay 33: Principle of Limited Government: Why the United States Constitution Is Designed To Prevent Centralized Power – 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 GarryThe principle of limited government greatly inspired the drafting of the United States Constitution. Indeed, the framers’ desire to restrain the new federal government was one of the primary design features of the Constitution. Not only was the U.S. Constitution the first written constitution to govern a democratic republic, but it was also the first constitution to be structured according to the goal of limiting the new government it was creating. Consequently, the notion of limited government was a uniquely American contribution to the science of political governance.
The failure of the Articles of Confederation—the first form of national government adopted following the War of Independence—gave rise to calls for a constitutional convention to draft a new design for a federal government. A main reason the Articles failed so quickly was that the national government it created was too weak—a weakness that reflected the deep-seated mistrust of central governments harbored by Americans in the wake of their experience with a British government that had used its power to deprive the American colonists of their liberty.
Although the first goal of the constitutional framers was the creation of a republican form of government which included a stronger national government than had existed under the Articles, the immediately subsequent goal was to build into the new constitution various structural limitations, preventing the federal government from overstepping its proper role. This belief in limited government stemmed from the framers’ opposition to the patterns of statism, absolutism, and totalitarianism existing in the eighteenth-century world. Consequently, within the Constitution, the framers designed an array of checks on federal power. These checks included, for instance, a separation of powers creating three separate branches of government, each of which could help check and restrain abuses committed by the other branches, as well as a federal government possessing only enumerated powers.
Even though the U.S. Constitution establishes a strong and independent federal government, it does so through a scheme of enumerated powers. The federal government only possesses those powers specifically granted it by the Constitution. Unlike the state governments, which possess plenary power to begin with and which the state constitutions must then limit or restrain, the national government under the U.S. Constitution possesses only those powers specifically granted to it. If the Constitution does not grant a power, then the federal government does not possess that power.
The framers held a cautious and skeptical view toward concentrations of government power. The framers worried more about empowering a federal government that could use its power to deprive people of their liberty than about not giving that government enough powers to swiftly address any political or economic crisis that might arise. They were more concerned about a government doing something wrong than about a government with enough power to be able to always do what was right. Therefore, the scheme of limited government built into the Constitution served as a means of safeguarding liberty, since a government limited in power would be less able to exercise power in abusive or oppressive ways.
To the framers, the principle of limited government was an even greater protection for liberty than were the freedoms outlined in the Bill of Rights. This was because a limited government would be a general protection for all types of liberty, whereas the Bill of Rights protected only a few specified liberties. While individual rights protect against particular acts of government abuse, structural provisions like limited government protect against systemic and continuing government abuses resulting from a lack of effective limits on that power. Indeed, an impetus for passage of the Bill of Rights was the belief that the original Constitution did not do enough to limit the power of the new federal government.
For the first century and a half of the nation’s existence, limited government was widely supported as a constitutional principle. But in the 1930s, as President Franklin Roosevelt’s New Deal agenda greatly expanded the scope and authority of the federal government to fight the consequences of the Great Depression, a belief in limited government waned significantly, especially among liberal activists who wanted the federal government to assume a much larger role in shaping society. Although the Supreme Court initially opposed this contradiction to the limited government principle, it eventually caved to political pressure and nearly abandoned this principle. As a result, the federal government has grown substantially since the 1930s. With its vast array of administrative agencies, the present federal government hardly seems reflective of the limited government principle originally embodied within the Constitution.
Over the past century, political pressures have pushed the expansion of the federal government, to a size and scope far beyond what the framers foresaw. This pressure can be seen whenever some crisis arises that appears as if it can only be solved by a national government unrestrained in the amount of debt it can accumulate. But as the framers foresaw, and as is so often witnessed today, a larger and more powerful federal government is also more prone to abuses and deprivations of liberty.
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Principle of Decentralized Government: Keeping Power on the Local Level With Each Individual American and the States
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 32: Principle of Decentralized Government: Keeping Power on the Local Level With Each Individual American and the States – 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. Knipprath“Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical…Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government.” – Melancton Smith, Delegate, First Provincial Congress in New York; June 27, 1788 Notes during days beginning the New York Ratifying Convention.
Melancton Smith is not a household name when considering the adoption of the United States Constitution. But he was well known to the members of the crucial 1788 New York ratifying convention. Through his writings, his ideas became well known beyond his state, even if his name did not. In the convention, Smith was aligned with Governor George Clinton, Aaron Burr, and the upstate Albany faction against John Jay, Alexander Hamilton, and the downstate New York City faction. Clinton was a wily politician and powerful political figure in the state and, later, in the country. He was also a prominent and effective antifederalist leader, who traditionally has been thought to be the writer of a series of antifederalist essays appearing under the pseudonym Cato.
Smith, too, was a prolific critic of the proposed Constitution. Indeed, he was such an effective advocate in the state ratifying convention for the opponents of the Constitution that Alexander Hamilton and other federalists felt obliged to respond to his challenges and criticisms. Smith had been a lawyer and was a merchant, so his style was logical, and his substantive critique was moderate and pragmatic. He appears to have been the author of a series of antifederalist essays previously attributed to the Virginian Richard Henry Lee and published anonymously under the name “Letters from a Federal Farmer to the Republican.”
Like the essays by Cato (George Clinton) and Brutus (attributed to Judge Robert Yates), those of the Federal Farmer posed a real threat to the adoption of the Constitution. Alexander Hamilton replied to them directly by name in Nos. 67 and 68 of The Federalist, the only antifederalist authors whom he named expressly. But there was a difference. With some justification, Hamilton considered the Cato essays to be works of political expedience, and Governor Clinton to be swayed by personal concerns about looming restrictions on the powers of state governments, should the Constitution be adopted. He castigated Cato as presenting deliberate falsifications of the constitutional structure of the executive branch. Falling into passages of purple prose at times, Hamilton singled out Cato as an example, “This bold experiment upon the discernment of his countrymen, has been hazarded by the writer who (whatever may be his real merit) has had no inconsiderable share of the applauses of his party; and who, upon this false and unfounded suggestion, has built a series of observations equally false and unfounded.”
By contrast, the Federal Farmer received, reluctantly, some faint praise. Hamilton noted that the method of selecting the president had received little criticism. Referring specifically to Federal Farmer, he wrote, “The most plausible of these, who has appeared in print, has even deigned to admit, that the election of the president is pretty well guarded.”
Smith eventually broke rank with the antifederalist opposition and voted in favor of the Constitution for practical reasons. By the time the convention voted, the requisite nine states had already approved it, so the Articles of Confederation had been supplanted. Then, the Virginia convention, where the result had been uncertain, voted narrowly to approve the Constitution. Virginia was the largest and wealthiest state. With Virginia out, there was reason to believe that the Constitution ultimately was not viable as a plan of union. With Virginia committed to the new charter, New York’s hand was forced, Smith believed. His defection helped the Constitution’s supporters gain a crucial 30-27 favorable vote, although the price was a letter that listed 25 proposed provisions in a bill of rights and 31 amendments to the Constitution, to be addressed through a second “general convention,” which never materialized.
Particularly because he was such a voice of moderation, Smith’s concerns about the threat of a far-away general government to the liberty of the people struck a chord. Moreover, his warnings were closely tied to the historical perceptions of Americans regarding Great Britain, including the charge that the people’s complaints would fall on deaf ears with a distant government, that such a government would tax and control them in ways that the people could not support, and, recalling sentiments from the Declaration of Independence, that such government would send in “an innumerable swarm of officers, to infest our country and consume our substance.”
Finally, his criticism simply “made sense.” Government close by is more likely to respond to local needs and to mirror local values than government in a remote location. It was a self-evident truth to classic republican writers that republics were homogeneous, with many shared traits and values among the people, and small in area and population. Although republics could be larger than pure democracies and exercise self-government through the principle of representation, the sacrifice that civic virtue often demanded under either system was rooted in notions of friendship and cultural affinity. Social science research has shown that the larger and more diverse the population of a polity is, the less civic engagement occurs. The result is that a ruling elite becomes distant from the general population, and self-government becomes a cherished fiction, a Platonic “noble lie,” more theoretical than real. Such homogeneity and small size have potential downsides of provincialism and inflexibility, of a “small-town” staidness, but there is a limit to the size of what truly could be characterized as a community.
Antifederalist writers made much of this connection among size, cultural affinities, civic virtue, and republican government. They repeatedly invoked the danger of “consolidation” under the new Constitution, that is, the fusion of the states into a single large unitary government, an empire, destined to become tyrannical. As Melancton Smith warned, that process of effective abolition of the state constitutional systems would not be a sudden event. Rather, it would be gradual but irresistible and inevitable, as the general government grew and expanded its powers ever more intrusively into traditionally local matters. “These liberties will not be violently wrested from the people; they will be undermined and gradually consumed.”
The potency of this republican challenge to the Constitution created an urgency for the charter’s supporters to respond vigorously. They used several arguments. Federalist writers commonly pointed to the limited powers which the Constitution vested in the general government in contrast to what they described as the vast reserved powers of the states. For example, James Madison used this tactic in The Federalist, No. 45:
“The powers delegated to the federal government, are few and defined. Those which are to remain in the state governments, are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers of the several states will extend to all the objects, which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people; and the internal order, improvement, and prosperity of the state.”
Another approach was to emphasize the effect of the natural rivalries of politicians fostered by the horizontal separation of powers in the structure of federalism. In the classic essay No. 51 of The Federalist, James Madison presented as a key feature of the Constitution the simultaneous separation and blending of powers in a system that guarded against oppressive government not by a myopic focus on civic virtue but on structures that enabled “Ambition…to counteract ambition.” “In a single republic [such as the several states], all the power surrendered by the people, is submitted to the administration of a single government; and the usurpations are guarded against, by a division of the government into distinct and separate departments. In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments [state and national], and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controlled by itself.”
Still another was to go on the offensive and to point out that even most American states at the time barely qualified as classic republics in view of their large territorial spread and population, and to note concurrently that the state constitutions lacked various protections so dear to antifederalist writers. As to size of republics, antifederalists cited Montesquieu, but Hamilton rejoined in No. 9 of The Federalist that “the standards he had in view were of dimensions, far short of the limits of every one of these states. Neither Virginia, Massachusetts, Pennsylvania, New York, North Carolina, nor Georgia, can by any means be compared with the models from which he reasoned and to which the terms of his description apply.”
As to protections of liberty, Hamilton objected in The Federalist No. 84,
“The most considerable of the remaining objections is, that the plan of the convention contains no bill of rights. Among other answers given to this, it has been on different occasions remarked, that the constitutions of several of the states are in a similar predicament. I add, that New York is of the number. And yet the persons who in this state oppose the new system, while they profess an unlimited admiration for our particular constitution, are among the most intemperate partizans of a bill of rights.”
In similar vein, Madison asserted that the danger of factions, the bête noire of republican belief, was much greater in the states than in the union. Waxing metaphorical, he insisted in No. 10 of The Federalist,
“The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: 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 a particular member of it; in the same proportion as such a malady is likely to taint a particular county or district, than an entire state. In the extent and proper structure of the union, therefore, we behold a republican remedy for the disease most incident to republican government.”
Finally, the Federalists pointed out the psychological tendency of voters to connect with local politicians. Hamilton described this in No. 17 of The Federalist:
“It is a known fact in human nature, that its affections are commonly weak in proportion to the distance or diffusiveness of the object. Upon the same principle that a man is more attached to his family than his neighbourhood, to his neighbourhood than to the community at large, the people of each state would be apt to feel a stronger bias towards their local governments, than towards the government of the union, ….”
Madison echoed that analysis in No. 46 of The Federalist and challenged Smith’s assertion that the new government would infest the country with swarms of bureaucrats:
“Many considerations, besides those suggested on a former occasion, seem to place it beyond doubt, that the first and most natural attachment of the people, will be to the governments of their respective states. Into the administration of these, a greater number of individuals will expect to rise. From the gift of these, a greater number of offices and emoluments will flow…. With the affairs of these, the people will be more familiarly and minutely conversant; and with the members of these, will a greater proportion of the people have the ties of personal acquaintance and friendship, and of family and party attachments.”
It is notable that the defenders of the Constitution at the time agreed that a distant government had systemic tendencies towards unresponsiveness and autocracy. They sought to blunt that criticism by defending their new “confederated republic.” As noted above, a significant part of that defense was that the general government’s powers were few and directed at truly “national” concerns which would arise in only unusual and occasional situations, whereas the states would deal with the everyday matters most directly and closely affecting the people. In hindsight, a fair observation is that many of the alarms the Antifederalists raised about an intrusive and overweening central government have materialized. The Federalists’ responses often appear quaint and unrealistic, perhaps even utopian, in light of events. Their own perceptions of human nature must have alerted them to the weaknesses of their positions and the veracity of the objections of calm and pragmatic critics such as Smith.
That said, Madison, Hamilton, and the other Federalists were not disinterested commentators. They were intent on completing their project of adopting the Constitution. As well, just because the Antifederalists appear prescient in their criticisms of the national government does not mean that their confidence in the republican attributes of state governments would have resulted in less control and regimentation of people’s lives. States and localities in fact do still control the main of people’s lives, just as the Federalists argued. Can it really be said that many state governments have not also “undermined and gradually consumed” the liberties of the people, that those governments have not created “an innumerable swarm of officers, to infest our country and consume our substance,” and that the people have not become “subject to impositions which they cannot support, and of which their complaints can never reach the government”?
We live in a country nearly one hundred times the population and four times the area of the United States when the Constitution was adopted. The principle of subsidiarity espoused by Melancton Smith in a republican constitution has the virtues of more direct popular participation and influence, more efficient implementation of political decisions, better reflection across broader domain of the diversity of local values and needs, and, hence, more immediate claims to political legitimacy. The many commentators on effective self-government who have warned over the centuries about the practical limits of republics in terms of area, population size, and cultural heterogeneity were keen observers of political systems. A devolution of more power away from the national government to the states and from the states to the localities well might be consistent with better republican government. Yet, with many current cities and metropolitan areas each exceeding the entire population of the United States in 1787, there will be further questions about how realistic it is today to expect republican government in anything but name even at the local level. Benjamin Franklin’s challenge remains, when he said about the nature of the government under the Constitution, “A republic, if you can keep it.”
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Principle of Law and Order Based on Immutable Laws of Nature and of Nature’s God, Not Arbitrary Will or Mob Rule
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 28: Principle of Law and Order Based on Immutable Laws of Nature and of Nature’s God, Not Arbitrary Will or Mob Rule – 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. Knipprath“I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin in an opinion editorial, No. 2, published April 16, 1722 in the New-England Courant.
In the 1215 version of Magna Carta, King John acknowledged, “We have granted moreover to all free men of our kingdom…all the liberties below…” “Free men” were the knights, barons, and small class of free tenants of land, not the large majority of the population who were villeins or other serfs. There follows a long list of such “concessions,” some profound, others whose inclusion must have been due to some alarming event, or some quirk of history or contemporary custom or feudal practice. Whatever the reason, even fundamental matters, such as that no tax shall be imposed except by the common council of the kingdom, or that criminal convictions —at least for nobles and free men—must be through trial before a jury of peers, were cast as matters of the king’s grace. Perhaps that formulation was due to the fact that the barons were holding King John hostage until he agreed to their terms, and those barons wished to make the matter look like a voluntary arrangement. But what the king grants, the king can take away, which John promptly did by repudiating the charter once he was released.
By the time of the American drive for independence, the original Magna Carta had little legal effect in England, with only a few provisions remaining in force after the subsequent issuance of differing versions and the enactment of various English statutes that overrode most of those provisions. However, Magna Carta retained a mythical hold on Americans, who argued that they were not rebelling against their constitutional government but preserving their ancient rights as Englishmen against usurpations by the king and Parliament. Americans believed the Whig perspective that Magna Carta protected the right of common Englishmen against arbitrary royal government and placed the king under the ancient common law. The jurist Sir Edward Coke had been the most influential originator of this idealized interpretation during his political clashes with the Stuart kings early in the 17th century. Not everyone agreed, most certainly not James I and Charles I. A bill introduced in Parliament in 1621 to confirm Magna Carta as law failed.
Appealing as Magna Carta was symbolically as a written constitution that represented a contract between king and people, when Americans actually read it, they could not avoid the fact that the language of the charter assumed that the rights involved originally belonged to the king. Moreover, the king had granted the enumerated rights only to a select few. This stood in clear contrast to the dominant theory at the time of the American revolution that every person is endowed by God with certain rights. Those were inherent in such persons by the grace of God, not by that of the king.
The theory of universal natural rights inherent in each person was a distinct derivative of the much older theory of human law and relations controlled by universal higher moral laws or by principles of natural justice. It was distinct because it focused on the sovereignty of each person, independent of all others and connected to the exercise of the person’s own rational self-interest. It placed the individual at the center of social community and required, at least as a general theory, the consent of each to form a political commonwealth. Duties undertaken to others arose out of the free exercise of one’s right to consent to do so.
The more traditional approach of writers on natural law and natural justice had assumed the operation of a universal order external and antecedent to human society. It functioned concretely, as manifested in the physical universe and human society, and morally, through human reason. Each person was a part of both aspects of that order. Moral and, ultimately, legal duties to others could arise only in humans as creatures who have the capacity to participate in the moral structure of that order. From these natural duties arose rights to make it possible to meet those obligations. In Nicomachean Ethics, Aristotle distinguished between natural and conventional justice: “Political Justice is of two kinds, one natural, the other conventional. A rule of justice is natural that has the same validity everywhere, and does not depend on our accepting it or not.”
In a similar manner, the Roman philosopher and political leader Cicero, expressing a Stoic interpretation, repeatedly explored the connection among law, justice, nature, God, and reason. Just a few select passages from his book Laws suffice as examples. “Law is the highest reason, implanted in Nature, which commands what ought to be done and forbids the opposite…. But in determining what Justice is, let us begin with that Supreme Law which had its origin ages before any written law existed or any State had been established.” Once it was established that there was a superintending structure of natural law commensurate in its essence with reason, Cicero explained how human beings can participate in that order, and can understand the duties created thereunder and exercise the correlative rights. “[T]hat animal which we call man, endowed with foresight and quick intelligence, complex, keen, possessing memory, full of reason and prudence, has been given a certain distinguished status by the supreme God who created him; for he is the only one among so many different kinds and varieties of living beings who has a share in reason and thought, while all the rest are deprived of it.” Such a momentous project is the work of an all-powerful and all-knowing superhuman mind. “[Natural] Law is not product of human thought, nor is it any enactment of peoples, but something eternal which rules the whole universe by its wisdom in command and prohibition. Thus they have been accustomed to say that Law is the primal and ultimate mind of God, whose reason directs all things ….” Finally, a human enactment, no matter the political system which created it, cannot truly be law if it conflicts with the higher natural law. “[N]either in a nation can a statute of any sort be called a law, even though the nation, in spite of its being a ruinous regulation, has accepted it. Therefore Law is the distinction between things just and unjust, made in agreement with that primal and most ancient of all things, Nature; and in conformity to Nature’s standard are framed those human laws which inflict punishment upon the wicked but defend and protect the good.”
Cicero has not been alone in distinguishing between a statute which is not truly law and one which is because of its conformance to justice represented by higher law. The distinction was clearly expressed by, among others, justices of the early Supreme Court. For example, in a colloquy between himself and Justice James Iredell, Justice Samuel Chase declared in 1798 in Calder v. Bull, “An ACT of the legislature (for I cannot call it a law) contrary to the great first principles of the social compact cannot be considered a rightful exercise of legislative authority.” The “first principles” to which Chase referred are those of natural law and natural rights, as shown by Iredell’s skeptical response: “It is true that some speculative jurists have held that a legislative act against natural justice must in itself be void, but I cannot think that under such a government any court of justice would possess a power to declare it so…. The ideas of natural justice are regulated by no fixed standard; the ablest and the purest men have differed upon the subject, and all that the court could properly say in such an event would be that the legislature (possessed of an equal right of opinion) had passed an act which, in the opinion of the judges, was inconsistent with the abstract principles of natural justice.”
St. Paul acknowledged the universality of natural law and its connection to the God of all mankind. In his letter to the Romans, Paul explained that “When Gentiles who do not possess the law do instinctively what the law requires,” it proves that God’s universal law exists outside any particular received commands. Those Gentiles “show that what the law requires is written on their hearts, to which their own conscience also bears witness; and their conflicting thoughts will accuse or perhaps excuse them” on the day of judgment. In that manner, enlightened pagans such as Plato, Aristotle, and Cicero might have keen insight into the moral order created by God, and they would be judged the same as those who had received the declared law. They were accountable for their thoughts, words, and deeds under the natural moral law, although their ignorance of specific aspects of the declared law might not be held against them.
Then why was it necessary to have revealed law at all? Philosophers and theologians have long made clear that not all people possess equal capacity to understand what God has written on their hearts, but also that the reason of all humans is imperfect due to the human condition. Humans lack the omniscience of God and His perfect reason to comprehend the full extent of the natural law. Revelation is necessary both for those matters whose substance is beyond human understanding and, at least for some people, “about those religious and moral truths which of themselves are not beyond the grasp of human reason,” in the words of Thomas Aquinas.
Alexander Hamilton in essay No. 33 and James Madison in essay No. 44 of The Federalist made similar arguments about a rather different matter. In Article I, Section 8, the United States Constitution expressly grants Congress the power to legislate regarding certain substantive matters. The question presented was why the Constitution also gave Congress the power to make all laws “necessary and proper” to carry into effect its other powers, when Congress already had the implied power to make such laws as a means for effectuating the ends specified in the Constitution. As Madison pointed out,
Hamilton concluded that “it could only have been done for greater caution, and to guard against all caviling refinements in those who might hereafter feel a disposition to curtail and evade the legitimate authorities of the union.” In other words, the implied power to make such laws already existed under universally accepted and applicable principles of government. But the extent of implied powers is ill-defined and subject to considerable debate and uncertainty. The express enumeration, then, provides a more concrete statement less subject to manipulation and deception.
If the immutable laws of nature represent the work of the divine reason, good human laws are the result of human reason applied to concrete conditions and problems. But human laws are sometimes the product of passion, often temporary, rather than of reason, in denigration of the classic definition. Hamilton addressed this problem in essay No. 78 of The Federalist, where he characterized judicial review of legislation as itself an act of reason to control the ill effects of popular passions:
As Cicero taught earlier, the fact that these laws, enacted as the result of temporary public passions, may have been approved by the nation does not lessen their incompatibility with the Constitution and with reason.
Mob rule would be another, perhaps even more blatant, triumph of passion over reason than the arbitrary human law hastily produced by the legislature. That body had more of an opportunity to calm those passions or might at least blunt their force in the eventual statute. However, there is another side to be considered. What is mob rule? Does the uncoordinated broad refusal of the people to go along with an arbitrary statute qualify as such, in what has been dubbed “Irish democracy”? Is direct peaceful opposition by large numbers in the form of demonstrations and petitions? Is rioting and violent opposition? Is insurrection by destroying government property, tarring and feathering government officials, and shooting at soldiers? Or is even the last a legitimate form of opposition to allegedly arbitrary government, at least if those opponents eventually win and write the history books? After all, to the British in the 1760s and 1770s, Americans often engaged in mob rule by a violent minority faction, which then escalated to insurrection and, eventually, full rebellion in a civil war.
The Constitution is positive law, proposed by humans in Philadelphia and approved by assemblies of humans in the several states. The charter incorporates what the Supreme Court has accepted as universal principles of natural law, such as prohibitions of ex post facto laws or of laws which interfere retroactively with the obligations and rights in contracts, take property without compensation or as mere redistribution for a private person’s benefit, deny basic protections of due process, burden one’s right of self-defense, or interfere with fundamental rights of conscience by abridging rights of free speech, assembly, press, and religion. If Thomas Paine is correct, and there is a natural right of self-government, the Constitution even protects that right, at least within broad bounds.
Still, even the Constitution is not at one with the immutable, constant laws of nature. What the human lawgiver gives, it can take away, just as King John did with Magna Carta. The Constitution can be amended, and nothing in its text prevents the nullification of the rights mentioned earlier. Nor is the discovery by the Supreme Court of unenumerated rights through flexible and creative interpretation of “liberty” under the due process clauses of the Constitution inherently immutable. Such discoveries can be reversed or neutralized by the Supreme Court itself, as happened recently with the retraction of the right of a woman to obtain an abortion, first discovered rather belatedly in 1973. Or a formal amendment can be adopted which overrides an earlier Supreme Court opinion, as has happened several times.
Nor does the Constitution address all principles of natural law and natural rights. It was not until adoption of the 13th Amendment in 1865 that the Constitution took a clear position against slavery, although Western philosophers of ethics and politics and theologists had wrestled with that issue for millennia and had found slavery to be contrary to nature and natural law at least under many circumstances. Worse, the Constitution itself may conflict with natural law and natural rights. After all, a mere five years earlier, on the eve of the Civil War, President Abraham Lincoln and other Northern politicians had advocated for another, far different 13th Amendment, one that would have expressly protected at the level of constitutional law that very same institution of slavery in the states where it then existed. Only the refusal of Southern radicals to accept the geographical limitation in that proposal and the force of the process already set in motion in the Southern states towards secession prevented its further consideration by Congress.
Another difficulty lies in this. To the extent that the Constitution’s text falls short of manifesting the immutable, constant laws of nature and the extent of natural rights, may the Supreme Court fill in those gaps? The Ninth Amendment does no more than state the obvious, that the enumeration of certain rights in the Constitution does not exhaust the scope of rights each person has. It provides no express license for the Supreme Court to substitute its judgment for that of the people or the people’s representatives. Moreover, as Justice Iredell objected in Calder, the commands of the natural law and natural justice are difficult to discern, especially in application to specific and varied circumstances, and have long been the object of philosophic speculation.
Of course, the people or their representatives should make law only in accordance with natural law. But the problem is precisely that they often are driven by self-interest and passion, not by the requisite reason. Nor are the people generally, or the legislators, inherently qualified as moral philosophers any more than the judges. This quandary requires inquiry into the role of private and public virtue in the promotion of proper self-government and the establishment of a political order and human law consistent with the natural law and the protection of each person’s natural rights.
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Principle of Decision Making by the Majority Within a Constitutional Framework
90 in 90 2023, Eric Sands, 6. Guest Constitutional Scholar Essayists, Blog Essay 27: Principle of Decision Making by the Majority Within a Constitutional Framework – Guest Essayist: Eric C. Sands, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Eric Sands, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesIn a republic, it is common to refer to government action needing to be supported by the consent of the people. But what do we mean by the “people?” Certainly, this cannot mean the consent of every person in a political community since no such universal consent would ever be possible. Instead, a republican form of government relies on the consent of the majority in undertaking action and carrying out public policy. This does not mean that the will of the majority is always right or just or that the majority cannot be tyrannical in how it exercises its will. There is no question that majorities can be as despotic as kings if given the ability to rule unchecked. The majority will, however, properly organized, limited, and directed within a constitutional framework will generally prove the most legitimate basis for good government.
No one makes this argument more effectively than James Madison, the architect of the large republic that can operate over a broad territory with a big population. This model, presented in Federalist 10, became the basis for the American idea of republicanism. In doing so, Madison argued that majority rule was not perfect, but it was better than any of the available alternatives. Majority rule is what allowed republican government to exist and what further allowed rule by the people. In short, the principle of majority rule is the basis of popular sovereignty and is tempered and moderated through the institutions of constitutional government. To be sure, not everyone agreed with Madison’s defense of majority rule. Some, like Thomas Jefferson, complained that rule by the majority left the rights of the minority insecure and presented the minority with few options in protecting their rights and liberties. A perfect example of this was the Alien and Sedition Acts passed in 1798, which restricted immigration and speech in the United States.
Jefferson was called on to help prepare a protest against the acts, which he did in the famous Kentucky Resolutions. In the Resolutions, Jefferson argued for a narrow reading of the Constitution and embraced a states’ rights interpretation of the constitutional system. His major concern, though, was how the minority could protect itself from the majority within the constitutional system. His solution was to embrace the doctrine of state nullification. As Jefferson explained, “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy; that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits.” Clearly, this was quite a radical doctrine and had important implications for the young republic. A number of prominent statesmen spoke out against Jefferson’s idea and predicted that nullification would become the death knell of the nation. In that they were not far wrong. Madison, for his part, helped prepare an alternative set of resolutions for Virginia, but was much less radical and said nothing about a power of nullification to protect the minority. The Alien and Sedition Acts showed that the majority’s will could sometimes be in error, but it was still the best way of organizing the voice of the people.
The challenge of nullification to the principle of majority rule came up again in 1832 when South Carolina nullified two tariff bills that it claimed were unconstitutional. Under the heavy influence of John Calhoun, South Carolina’s Nullification Proclamation announced that the acts “are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens.” According to Calhoun and South Carolina, every state had the right to judge for itself the constitutionality of the laws of the country and to negate those laws if a state believed them to be unconstitutional. This was the only way of protecting the minority against the overreach of the majority and to make sure that minority rights and interests are taken into account.
But the nullifiers’ claims did not stop there. Backing up their doctrine of nullification was an appeal to secession. The Proclamation warned the national government that any attempt to change South Carolina’s nullification by force would leave the state with no choice but to leave the Union. An act of aggression against the state would be
“inconsistent with the longer continuance of South Carolina in the Union; and that the people of this State will henceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of the other States; and will forthwith proceed to organize a separate government, and do all other acts and things which sovereign and independent States may of right do.”
Eventually, South Carolina backed down on nullification, but the fact it had been raised again speaks to what a powerful challenge it was to the principle of majority rule. It is for this reason that Madison as an elder statesman prepared a response to Calhoun and a defense of majority rule. In 1833, Madison wrote in a letter that articulated his strong position on majority rule and how the extended republic makes majority rule possible and safe. As Madison wrote,
“Those who framed and ratified the Constitution believed that as power was less likely to be abused by majorities in representative governments than in democracies…and less likely in the larger than in the smaller communities, under a representative government, inferred also, that by dividing the powers of Government and thereby enlarging the practicable sphere of Government, unjust majorities would be formed with still more difficulty.”
To men like Calhoun, and Jefferson, who would attack majority rule, Madison put the matter plain. Without majority rule, republican government was simply not possible. This made it clear that “while the Constitution is in force, the power created by it [in a popular majority] must be the legitimate power, and obeyed as the only alternative to the dissolution of all government.” Thus, it is, according to Madison, that majority rule under constitutional government is not to be preferred because it is perfect, but because it is the least imperfect.
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Principle of Self-Governing
Josh Herring, 90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog Essay 26: Principle of Self-Governing – Guest Essayist: Josh Herring, Josh Herring, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesIn The Abolition of Man, C.S. Lewis argues that education exists to inspire students’ affections so that they love good and hate evil. Such, the Western tradition has held time out of mind, is the route to being able to perceive the choices which lead one towards a happy life, and the choices which lead away from such an end. Lewis stands in agreement with both Aristotle and Kierkegaard in affirming that as rational creatures, human beings have the ability to make real choices.
It is this capacity for rational choice that makes the founding principle of “self-government” so vital for the flourishing of the American republic. James Madison famously wrote that the regime the founders and framers envisioned could only be maintained by a “moral people,” meaning that the American system of governance depends upon the majority of citizens practicing customs which train the heart and hands to love what is good. The founders were not naive; they knew the evil that resides in the human heart. And yet, their federalist system envisioned a people whose religious allegiance and moral training enabled them to choose right over wrong, good over evil, beneficial over harmful, in most cases. John Jay made the connection between a self-governing people choosing virtue and maintaining their freedom clear:
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 every where, 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…[1]
Such self-governance is necessary for the flourishing of a legal system within which the people can, through various hierarchical structures, vote to construct their society as they see fit. We have that capacity. Given this reality, the importance of self-government should be clear. We need citizens to value rule of law, to see and approve of the connection between natural law and civil law, to perceive the necessary goods of property rights and constitutional order for the American way of life to continue. Different regimes exist; it takes but a momentary survey of 20th century history to see fascism, communism, and dictatorship as counter examples of what is possible. How then do we inculcate the value of self-governance in the rising generation?
Self-governance becomes a question of education. And this is where the classical education renewal movement holds the seeds of restoring health and vitality to the American way of life. I propose three ways the classical education passes on the principle of self-governance to students. First, we teach students that humans exist as embodied souls, and as such hold intrinsic worth. As rational creatures of infinite value, their choices matter. But with those choices comes responsibility. Second, school is a place for students to learn that actions, words, and ideas have consequences. Choosing to study diligently throughout the term results in academic progress and completion of a course. Engaging in physical violence results in expulsion. Being a faithful, diligent student who participates in the great tradition leads to forming strong relationships with teachers (creating the teachers’ ability to write recommendations). Third, classical schools teach students to see the past as an inheritance they must receive, steward, and pass on. In so doing, students take ownership of the ideas, values, concepts, and skills that previous generations have developed. They then exercise those ideas to build a fulfilling life capable of reaching happiness. Through these concepts, long abandoned by mainstream education, the classical renewal movement offers hope to an America in need of rediscovering her first principles.
A self-governing citizenship is the only way to avoid Thrasymachus’s accusation in The Republic that “Justice is nothing but the will of the stronger.” If a people will not govern themselves, they will eventually cause their own destruction. But such an end is not inevitable. In families, in churches, in schools, and in all the variations of Edmund Burke’s “little platoons” which make up our society, the principle of self-governance is still taught, practiced, and exemplified. So long as we live aware of the value of our choices, we preserve our freedom. In losing that awareness, in living as if reality were consequence-free, we exchange freedom for bondage. Someone will rule over us, and for that to be ourselves, we must recover self-governance as a way of life.
[1] John Jay. “Citizen of New York: An Address to the People of the State of New York” (April 15, 1788).
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Under Strict Limits: Principle of a Written U.S. Constitution, a Contract Allowing Government to Run Under Authority of the American People
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 25: Under Strict Limits: Principle of a Written U.S. Constitution, a Contract Allowing Government to Run Under Authority of the American People – 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 LangerThe brilliance of the United States Constitution lies not just in its innovative governance structure but in its foundational principle: that it is a written contract allowing, under strict limits, a government to run under the authority of the American people within the states. This principle, in fact, was not an accidental development but a conscious response to the concerns and criticisms prevalent in the post-revolutionary era. One such concern was voiced in a 1778 letter disparaging the American constitutions as inadequate in their republican form, claiming they replicated the tyrannies America sought to escape. It is to this concern that John Adams, a pivotal figure in the nation’s founding, offered a compelling defense.
Adams replied in his first letter which was part of his three-volume response written from 1787 to 1788:
“There are in the productions of all of them, among many excellent things, some sentiments, however, that it will be difficult to reconcile to reason, experience, the constitution of human nature, or to the uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern.” – A Defense of the Constitution of Government of the United States of America, Letter I, Volume I, Preliminary Observations, John Adams, Grosvenor-Square, October 4, 1786
Even though, through his letters, Adams’ initial response is directed to the American state constitutions of the time, through this lens, the U.S. Constitution that would come later can be seen not just as a foundational document of a nation, but as a meaningful dialogue with history, philosophy, and human nature itself. His profound assertion draws attention to the uniquely American synthesis of reason, experience, and an informed understanding of human nature that undergirds the U.S. Constitution.
Adams’ defense provides an insightful understanding of the Constitution’s design. The reference to “reason, experience, the constitution of human nature” underscores the importance of these elements in the design of the Constitution. He acknowledges that no political document, including the American constitutions, can be free from imperfections. Yet, he contends that the United States Constitution, by grounding itself in human reason and experience, offers a robust framework for the functioning of a republic.
The Constitution’s written nature, as Adams seems to imply, is central to ensuring its efficacy as a contract between the people and the government. A written constitution provides a tangible and constant point of reference, a standard against which the actions of the government can be measured. In the context of the American Revolution, a written constitution was particularly significant. It represented a break from the unwritten traditions and discretionary powers that characterized the monarchy America was rebelling against.
Moreover, the Constitution goes beyond merely setting the rules of governance. Its provisions for separation of powers, checks and balances, and federalism were innovative measures to prevent the concentration of power – a direct response to the accusation of the American constitutions merely “repeating dictatorships.” These mechanisms ensure that no single entity within the government can dominate, thus safeguarding the people’s control over their government.
In the light of Adams’ emphasis on the “uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern,” it is clear that the Constitution was not conceived in a vacuum. Instead, it was informed by a rich tradition of political thought. The Framers drew upon lessons from ancient Rome and Greece, Enlightenment philosophies, and contemporary political experiences. They sought to create a Constitution that would not only serve the immediate needs of the fledgling nation but also stand the test of time.
Moreover, they were influenced heavily by the country’s experience under the Articles of Confederation, the nation’s first written constitution. Its deficiencies, including the national government’s inability to act during Shays’ Rebellion (1786–87), exposed the need for a more robust central government capable of direct taxation and regulating interstate commerce.
Furthermore, the U.S. Constitution embodies the principle that the ultimate authority rests with the American people. This principle is most evident in the Constitution’s opening words: “We the People…” It is the people who are giving the government its power and setting its limits. The Constitution, therefore, is not an instrument of the government to control the people, but an instrument of the people to control their government. This is the essence of the republican form that the 1778 critique claimed was lacking.
The Constitution’s authors were acutely focused on limiting the power of government and securing citizens’ liberty. They sought to strike a balance between authority and liberty, embodying the central purpose of American constitutional law. To achieve this, they adopted the doctrine of legislative, executive, and judicial separation of powers, checks and balances, and explicit guarantees of individual liberty.
Integral to the Constitution’s design is the principle of a social contract—a fundamental agreement between the government and the governed. This social contract places the Constitution within the Enlightenment’s philosophical tradition, drawing upon ideas from ancient philosophy, English common law, English political theory, and the European Enlightenment.
However, this isn’t the complete picture of the Constitution’s influence. To fully comprehend its breadth and significance, it’s essential to understand John Adams’ quote in context. His argument suggests a keen awareness of the complexities and potential pitfalls of constructing a republic, a challenge the Framers of the U.S. Constitution had to grapple with—an awareness no doubt gleaned from his years of political work in the Continental Congress, where he saw firsthand the perils of unbridled power, fostered a deep-seated commitment to the principles of decentralization and individual liberty. It was Adams who famously remarked that “power must never be trusted without a check.”
Adams’ involvement in the negotiations leading to the unanimous vote on the Declaration of Independence further honed his views on the balance of power. He witnessed the states banding together in a common cause, each contributing to the struggle for independence while retaining their individual identities and rights. The unanimous vote was a testament to the power of cooperative federalism, a principle that would later be enshrined in our Constitution.
In crafting the Constitution, Adams drew on these experiences to advocate for a system of government that balanced the authority of the federal government with the rights of states and individuals. He championed the idea of a strong central government, yes, but one that was kept in check by the rights of states and the liberties of the citizenry. It is this delicate equilibrium, so cherished by Adams, that has allowed our republic to flourish.
For Adams, and for us, the essence of American liberty lies in this balance. His experiences in the crucible of independence shaped a vision of government that valued both the collective strength of the federal government and the individual freedoms of its citizens.
The United States Constitution stands as a beacon of American political philosophy, embodying a profound understanding of human nature, reason, and the wisdom of past statesmen, legislators, and philosophers. It is the embodiment of a social contract, firmly rooted in the principle of popular sovereignty. Yet, it is also a testament to the profound challenges and complexities involved in crafting a republic that is both robust and responsive to the needs of its citizens. To fully appreciate its significance, we must heed Adams’s words and reconcile its provisions with the wisdom that can only come from experience.
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 a Written United States Constitution as the Supreme Law of the Land, Designed for the Preservation of Liberty
Benjamin Slomski, 90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog Essay 24: Principle of a Written United States Constitution as the Supreme Law of the Land, Designed for the Preservation of Liberty – Guest Essayist: Ben Slomski, Benjamin Slomski, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThe idea of a constitution is an ancient one. The idea of a written constitution, however, is relatively new. To be sure, regimes have long created written documents and legal codes that outline the structure of governing authorities and protect certain rights for citizens and subjects. Yet before the United States Constitution, these written documents were not seen as fundamental for understanding what constitutes a regime. Before Americans chose to produce written constitutions, a constitution was understood in terms of the norms that make up a regime rather than the words written on any piece of paper.
Classical political thought recognized the need to study constitutions, but a regime’s constitution was the collection of formal and informal norms that made up a people’s way of life in a regime. In Aristotle’s Politics, he describes the regime (the Greek word politeia) as “an arrangement of a city with respect to its offices, particularly the one that has authority over all matters. For what has authority in the city is everywhere the governing body, and the governing body is the regime.” In other words, the constitution of a city was not a legally-binding written document outlining the powers and restrictions on officers. Instead, the constitution was the way the people of a regime lived and how they chose to organize their governing offices at a given time. Constitutions were much less a matter of fixed law and much more a matter of a people’s organic norms. Politics was inherently contingent as a regime would change in its nature whenever the people changed in their ways and how they chose to organize authority.
All of this changed with the United States Constitution. Certainly, the idea of a written document to serve as the fundamental law of government did not spring from the mind of James Madison in 1787 without any antecedents. Early settlers of the American colonies wrote documents outlining the governing principles for their new settlements, such as the Pilgrims’ Mayflower Compact. The idea of a model constitution for a regime had been developing in modern political thought, such as in John Locke’s Second Treatise of Government. During the American Revolution, states began writing new constitutions even before the Declaration of Independence was published. The Continental Congress passed the Articles of Confederation as the first written constitution for the United States. The document produced by the Constitutional Convention in 1787 to correct the defects of the Articles, which was then ratified by the American people, was the culmination of these efforts.
The shift in thinking on the importance of a written United States Constitution cannot be understated. The implicit idea was that a written document outlining the new government’s fundamental principles and its structure could establish a legal and political framework to shape the informal norms by which the people constitute themselves. The Constitution would serve an educational role by informing citizens of the government’s organizing principles. Under a written constitution, politics could be at least less contingent than under the older notion of a constitution as there are written norms that can last across generations to shape political conduct. A written constitution does not guarantee any political outcomes, of course, as politics will always be subject to the individual choices of human action. The Constitution does, however, distribute authority and establish norms in a way that will make certain outcomes more likely. The Constitution establishes a lasting structure to guide politics because there are further principles embedded in the idea of a written constitution.
One of the central ideas behind writing a constitution down is that government’s power is not unlimited. Chief Justice John Marshall explains this well in the famed Supreme Court case Marbury v. Madison:
If the government’s power is absolute, then there is no reason to write down restrictions on government because it would be free to do whatever it wants. If limits on government authority are written down, then it is assumed that these limits will be upheld; otherwise, there was no point to writing the limits down. Marshall thus proclaims in Marbury that a written Constitution is “what we have deemed the greatest improvement on political institutions.”
The deepest assumption behind the idea of a written constitution is that all political power originally comes from the people. If government’s power came from within itself, then there would be no natural limits to what government can do and no need for written restrictions. Instead, governmental power is granted by the people and a constitution serves as a specific statement of what is granted and what authority the people retain for themselves. This delegation of power must be done in an explicit, concrete act by writing it in a public document approved by the people to embody their fundamental will. The written United States Constitution recognizes that the ultimate source of authority remains with the people who have enacted a document to last for ages so that future generations will share the blessings of this supreme law of the land.
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Principle of Appropriate Role and Purpose of Government Upon Protection of Natural, Unchangeable, Unalienable Rights
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 23: Principle of Appropriate Role and Purpose of Government Upon Protection of Natural, Unchangeable, Unalienable Rights – 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 PorterWhy Government?
Thomas Jefferson said it most succinctly: “to secure these rights, governments are instituted among men.” We could end this discussion right there – the “appropriate role and purpose of government” is the “security, the protection of unalienable rights,” but we all know there is more to the story.
Americans today are losing touch with the concept of God-given, unalienable rights, some in fact firmly reject the idea, even the existence of such rights, believing instead that government is not only the protector of our rights, but also their source. America’s Founders rejected this concept out of hand. As Jefferson clearly stated, we “are endowed by [our] creator with certain unalienable rights.” He made a similar observation two years prior in his Summary View of the Rights of British America[i] and later in his 1785 Notes on the State of Virginia.[ii]
The Source of Rights
Today, however, when someone speaks of “natural law” or “natural rights” they should be asked to clarify whether they are referring to God-given natural rights or rights which accrue to humans “naturally” through a social contract or “the nature of things.” The use of the adjective “inherent” in describing rights, as George Mason did in the 1776 Virginia Declaration of Rights,[iii] lends itself to two different interpretations, the rights are either uniquely inherent to humans as creations of God or are uniquely inherent to humans as the apex species of evolution. Given this, I prefer “unalienable” to “inherent.”
Though a Christian (he authored “The Truth of the Christian Religion”), the Dutch political philosopher Hugo Grotius[iv] promoted the idea (borrowed from Cicero and others) that natural law was created by the natural order and was not, or at least not necessarily a creation of God. Natural law did not require God’s revelation but could be discovered simply and solely through human reason. While America’s Founders knew of and respected Grotius, particularly his famous 1625 On the Law of War and Peace (De Jure Belli ac Pacis), as we see will in the following quotations, they held to a theistic source for both natural law and natural rights.
But even America’s leaders had to remind their fellow citizens of this from time to time. Writing in reply to an essay from “The Farmer,”[v] Alexander Hamilton explained:
“The fundamental source of all your errors, sophisms[vi] and false reasonings is a total ignorance of the natural rights of mankind. Were you once to become acquainted with these, you could never entertain a thought, that all men are not, by nature, entitled to a parity of privileges. You would be convinced, that natural liberty is a gift of the beneficent Creator to the whole human race, and that civil liberty is founded in that; and cannot be wrested from any people, without the most manifest violation of justice. Civil liberty is only natural liberty, modified and secured by the sanctions of civil society. It is not a thing, in its own nature, precarious and dependent on human will and caprice; but it is conformable to the constitution of man, as well as necessary to the well-being of society…”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 Supreme Being gave existence to man, together with the means of preserving and beatifying that existence. He endowed him with rational faculties, by the help of which, to discern and pursue such things, as were consistent with his duty and interest, and invested him with an inviolable right to personal liberty, and personal safety . . . . 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.”[vii]
Human beings have natural, unalienable rights which are incapable of being “be erased or obscured” by any act of man or government.
In his 1765 Dissertation on the Canon and Feudal Law, John Adams insisted that our rights were “derived from the great Legislator of the universe.”
Virginian lawyer George Mason, arguing in the 1772 case of Robin v. Hardaway, (1 Jefferson 109) affirmed that:
“The laws of nature are the laws of God: A legislature must not obstruct our obedience to him from whose punishments they cannot protect us. All human constitutions which contradict His laws, we are in conscience bound to disobey. Such have been the adjudications of our courts of justice.” [viii]
Other American Founders, such as John Dickinson, expressed similar views:
“Kings or parliaments could not give the rights essential to happiness… We claim them from a higher source – from the King of kings, and Lord of all the earth. They are not annexed to us by parchments and seals. They are created in us by the decrees of Providence, which establish the laws of our nature. They are born with us; exist with us; and cannot be taken from us by any human power without taking our lives. In short, they are founded on the immutable maxims of reason and justice.”[ix]
Dickinson was an intriguing man, largely overlooked today. Born into a family with long-standing ties to the Quaker religion, Dickinson received an education in the law at the Middle Temple, London, before setting up his practice near Philadelphia. He inherited land holdings in both Pennsylvania and Delaware and became one of the richest men in both states.[x] In 1776, Dickinson represented Pennsylvania at the Continental Congress as it considered independence. His Quaker roots kept him from openly voting for independence (and inevitable war), so on the fateful day of July 2, 1776, Dickinson (along with Robert Morris) “absented himself” to give the Pennsylvania delegation a majority in favor of Virginia’s resolution for independence. Once the resolution for independence passed, Dickinson similarly refused to vote in favor of Jefferson’s Declaration, a decision which then forced his resignation from the Pennsylvania delegation. Once out of the Congress, Dickinson surprisingly joined the Pennsylvania militia as a Brigadier General, becoming one of only two members of the First Continental Congress who actively took up arms during the war. Dickinson capped his long public service career by representing Delaware at the Constitutional Convention.
In this statement on natural rights, Dickinson repeats familiar themes: rights originating with a Creator God, resulting from God’s natural law, and which “cannot be taken from us by any human power.”
James Wilson, one of six men who signed both the Declaration of Independence and the Constitution, after calling God “the promulgator as well as the author of natural law,” observed in his famous 1790 Lectures on Law:
“I here close my examination into those natural rights, which, in my humble opinion, it is the business of civil government to protect, and not to subvert, and the exercise of which it is the duty of civil government to enlarge, and not to restrain. I go farther; and now proceed to show, that in peculiar instances, in which those rights can receive neither protection nor reparation from civil government, they are, notwithstanding its institution, entitled still to that defence, and to those methods of recovery, which are justified and demanded in a state of nature.”[xi]
To protect and enlarge our natural rights, this becomes the “business” of civil government, or at least one of the responsibilities or duties of government.
The History of Rights (much abridged)
Rights, and the security thereof, had gradually become a central focus of Englishmen as they wrestled with two oftentimes opposing concepts: the divine (i.e., God-endorsed) right of kings on the one hand, and the unalienable, God-given rights of individuals on the other hand. Magna Carta became a waypoint in this investigation; forcing King John to subordinate his divine right and accept responsibility for protecting certain individual rights, including due process of law and trial by jury.
Magna Carta was soon ignored, but was eventually replaced by newer versions. In the 17th century, Magna Carta’s rights were supplemented by Parliament’s Petition of Right (1628) and the English Bill of Rights (1689). This growing focus on natural rights accompanied America’s settlers as they sailed for the colonies, being encapsulated in the first colonial charters as “liberties, franchises and immunities”[xii] of Englishmen. From there, rights were expanded and reinforced, expounded in a host of colonial documents, beginning with the Mayflower Compact and ending one hundred and seventy-one years later with the Constitution’s Bill of Rights. Over this period, the colonists seldom passed up an opportunity to reiterate their essential rights. A partial list:
1620 – Mayflower Compact (Plymouth)
1636 – Code of Law (Plymouth)
1639 – Fundamental Orders (Connecticut)
1639 – Act for the Liberties of the People (Maryland)
1641 – Body of Liberties (Massachusetts)
1677 – Declaration of the People (Virginia)
1701 – Charter of Privileges (Pennsylvania)
1763 – The Rights of the British Colonies Asserted and Proved (James Otis)
1764 – The Rights of Colonies Examined (Stephen Hopkins)
1765 – Declaration of Rights and Grievances (Stamp Act Congress)
1766 – An Inquiry into the Rights of The British Colonies (Richard Bland)
1772 – The Rights of the Colonists (Samuel Adams)
1774 – A Summary View of the Rights of British America (Thomas Jefferson)
1774 – Declaration and Resolves (1st Continental Congress)
1775 – Declaration on the Causes of Taking Up Arms (2nd Congress)
1776 – (January) Bill of Rights (New Hampshire Convention)
1776 – (June) Declaration of Rights (Virginia)
1776 – (July) Declaration of Independence (2nd Continental Congress)
1776 – (July) Declaration of Rights (Pennsylvania)
1776 – (September) Declaration of Rights (Delaware)
1780 – Declaration of Rights (Massachusetts)
1788 – Declaration of Rights (North Carolina)
1790 – Of the Natural Rights of Individuals -Lectures on Law (James Wilson)
1791 – The U.S. Bill of Rights
Natural law and the natural rights which spring from them are enjoying a resurgence in popularity of late, thanks to the scholarly work of men like John Finnis in Natural Law and Natural Rights (Clarendon Law Series, 2nd Edition; J. Budziszewski in Written on the Heart: The Case for Natural Law; Hadley Arkes in Mere Natural Law: Originalism and the Anchoring Truths of the Constitution; and others. As John Horvat explains, “the growing acceptance of natural law theory among frustrated Americans is shaking the legal field.”[xiii] This resurgence within the legal and scholarly communities appears to terrify some, however, natural law and natural rights are still ignored or misunderstood by the vast majority of Americans.
The Extent of Natural Rights
There is no known “inventory” of natural rights, at least none that all political philosophers or natural rights expositors over the millennia have agreed upon. The Founders knew of course of the Ten Commandments, which form the core of “the laws of Nature’s God.” If God commands “thou shalt not steal” it seems reasonable to derive from that “a right to acquire and retain property.” “Thou shalt not murder” denotes a “right to the preservation of one’s life.” But no Founding Father appears to have attempted an enumeration of all natural rights. Indeed, as James Iredell explained at the 1788 North Carolina Ratifying Convention, such an enumeration, if used as the basis for a Bill of Rights:
“…would not only be useless, but dangerous, … it would be implying, in the strongest manner, that every right not included in the [enumeration] might be impaired by the government without usurpation; and it would be impossible to enumerate every one. Let any one make what collection or enumeration of rights he pleases, I will immediately mention twenty or thirty more rights not contained in it.”[xiv]
But a useful list of those essential rights the Founders collectively supported can nevertheless be gleaned from their writings. As Chester James Antieau explains:[xv] “the natural rights on which there was the largest agreement and the greatest significance were … freedom of conscience and religion, life, liberty and the pursuit of happiness, property, the right to govern and tax themselves, and freedom of communication.”
Some Founders also supported rights derived from the common law, such as the right to trial by jury, and freedom from warrantless searches, but such rights cannot be denominated as “natural” rights since they would have no rational basis in a hypothetical state of nature.
How Should Rights Be Secured?
The next question we must consider is: how should the government fulfill its responsibility of protecting our unalienable rights? Is a Bill of Rights necessary, or even appropriate?
James Madison and other Founders considered the Constitution itself to be a “bill of rights.” A constitution of limited and enumerated powers, carefully drawn, will protect individual rights by not providing the new government with the power or authority necessary to infringe on those rights. “For why declare that things shall not be done which there is no power to do?” wrote Alexander Hamilton in Federalist 84.[xvi] While the Framers certainly felt they had created a limited power document, replete with checks and balances, history has shown the ambiguity of language to be the Framers’ downfall. The Anti-federalists saw “loopholes”; for instance, the power given the Supreme Court would allow the court to “mould the government, into almost any shape they please.”[xvii] The Anti-federalists fumed over the absence of a Bill of Rights, “would it have consumed too much paper?” scowled Patrick Henry. When sent a copy of the Constitution to review, Jefferson replied by gently chiding his friend: “A bill of rights is what the people are entitled to against every government on earth, general or particular; and what no just government should refuse, or rest on inferences.” [xviii]And so a reluctant James Madison agreed to single-handedly champion the project.
The initial draft he submitted to Congress, borrowing heavily from the Virginia Declaration of Rights, contained several protections which did not survive the House and Senate “wordsmithing.” Madison’s treasured “rights of conscience” didn’t even make it through the House Committee on which Madison himself sat!. Despite these setbacks, Madison persisted and the document was finally sent to the states for ratification, achieving that on December 15, 1791, with Virginia’s acceptance. But would a Bill of Rights be enough?
In an October 1788 letter to Thomas Jefferson, Madison had warned that even a Bill of Rights might not be sufficient: “Repeated violations of these parchment barriers have been committed by overbearing majorities in every State. In Virginia I have seen the bill of rights violated in every instance where it has been opposed to a popular current.”[xix] “Tyranny of the majority,” the primary reason the Founders’ abhorred democracy. But infringements of rights do not require a majority, with the help of government even a minority can prevail.
When Governments Become Corrupted
Americans have recently witnessed how a government can be enticed to infringe upon our unalienable rights by a “popular current” arising from even a small minority faction. The revelation that officials in the Executive branch of the federal government colluded with media companies to silence the public expression of viewpoints they did not agree with shocks us, it is reminiscent of the Communist regimes under Stalin and Mao, not to mention the authoritarian governments in present-day Russia and China.
Jefferson believed that: “The republican is the only form of government which is not eternally at open or secret war with the rights of mankind.”[xx]
The Americans are the ultimate sovereigns in their republican form of government; government is their servant, not the reverse. Unfortunately, the American people, by and large, have abandoned the Founders’ view of both law and government.
If there is any good news here it is that at least some Americans, those who understand the societal sea-change being forced upon them, are willing to fight for protection of their unalienable rights. Welcome assistance comes from the present Supreme Court, which is currently staffed with a majority of justices who share an originalist and therefore Founders’ view of rights. But our trust in a temporary majority of originalist justices should be cautioned by the realization that future courts may not be so favorably apportioned. As Jefferson reminds us: “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”[xxi]
So, it is to the Bill of Rights itself we must turn; is its language sufficient or too open to interpretation? Should we consider the words of the original Bill of Rights as unamendable, or should we be willing to clarify ambiguous 18th century language? Are we to accept our society’s present worldview confusion as inevitable or should we work to correct it?
These are the sort of questions we should be asking, and debating.
In his 1967 Inaugural Address, the great Ronald Reagan cautioned:
“Freedom is a fragile thing and it’s never more than one generation away from extinction. It is not ours by way of inheritance; it must be fought for and defended constantly by each generation, for it comes only once to a people. And those in world history who have known freedom and then lost it have never known it again.”[xxii]
If we want to continue to enjoy our natural, unalienable, God-given rights, and we wish our posterity to be likewise blessed, we must be prepared to fight for and defend them.
I will conclude with the words of Founder John Jay, first Chief Justice of the Supreme Court under the new Constitution, who in 1777, while instructing (charging) a New York grand jury, reminded us:
“Every member of the State ought diligently to read and to study the constitution of his country and teach the rising generation to be free. By knowing their rights, they will sooner perceive when they are violated, and be the better prepared to defend and assert them.”[xxiii]
Note that, for (at that time) Judge Jay, reading the Constitution is not sufficient, it should also be studied, and diligently so. The goal, of course, lies not simply in the reading and studying; the goal is to pass along what you have learned to the next generation of Americans. Even then, the project is not complete; the rising generation requires this knowledge to be better equipped to defend and assert their rights, thus, hopefully, perpetuating a society of freedom and liberty.
John Jay would be proud of the commendable work Constituting America accomplishes in pursuing his charge.
gary@constitutionleadership.org, on Facebook or Twitter @constitutionled.
[i] https://avalon.law.yale.edu/18th_century/jeffsumm.asp.
[ii] https://docsouth.unc.edu/southlit/jefferson/jefferson.html.
[iii] “That all men are by nature equally free and independent and have certain inherent rights, of which, when they enter into a state of society, they cannot, by any compact, deprive or divest their posterity; namely, the enjoyment of life and liberty, with the means of acquiring and possessing property, and pursuing and obtaining happiness and safety.”
[iv] A latinizing of his given name: “Huig van Groot.”
[v] Hamilton was replying to a series of essays, appearing from November 1774 to January 1775, written by “A W. Farmer, (loyalist Bishop Samuel Seabury, the first American Episcopal bishop), who had set out “to detect and expose the false, arbitrary, and tyrannical PRINCIPLES upon which the [Continental] Congress acted, and to point out their fatal tendency to the interests and liberties of the colonies.” To see the arguments Hamilton is “refuting,” the “Farmer’s” letters can be accessed at: http://anglicanhistory.org/usa/seabury/farmer/.
[vi] Sophisms: specious arguments for displaying ingenuity in reasoning or for deceiving someone. Dictionary.com.
[vii] Alexander Hamilton, The Farmer Refuted, February 23, 1775, New York.
[viii] https://cite.case.law/jefferson/1/109/.
[ix] John Dickinson, An Address to the Committee of Correspondence in Barbados, 1766.
[x] Interestingly, for a short period of time (November 1782-January 1783) Dickinson served as the President of both states.
[xi] http://www.nlnrac.org/node/241.
[xii] 1606 First Virginia Charter, at: https://encyclopediavirginia.org/entries/first-charter-of-virginia-1606/.
[xiii] https://www.tfp.org/why-the-left-hates-and-is-terrified-by-natural-law/.
[xiv] https://docsouth.unc.edu/nc/conv1788/conv1788.html, p. 192.
[xv] Chester James Antieau, Natural Rights And The Founding Fathers-The Virginians, 17 Wash. & Lee L. Rev. 43 (1960), http://scholarlycommons.law.wlu.edu/wlulr/vol17/iss1/4.
[xvi] https://avalon.law.yale.edu/18th_century/fed84.asp.
[xvii] Brutus XI, in The Complete Anti-Federalist, Herbert J. Storing, ed., (Chicago: The University of Chicago Press, 1981) Volume Two, Part 2, 417-422.
[xviii] Thomas Jefferson, Letter to James Madison, December 20, 1787.
[xix] https://press-pubs.uchicago.edu/founders/documents/v1ch14s47.html.
[xx] Letter to William Hunter, 11 March 1790., at https://founders.archives.gov/documents/Jefferson/01-16-02-0130.
[xxi] Thomas Jefferson, in a draft of the Kentucky Resolutions of 1798.
[xxii] This is the version Reagan uttered during his Inaugural Address as President on January 5, 1967, not the more familiar and edited version published afterwards. See: https://www.reaganlibrary.gov/archives/speech/january-5-1967-inaugural-address-public-ceremony.
[xxiii] The Correspondence and Public Papers of John Jay, ed. Henry P. Johnston, A.M. (New York: G.P. Putnam’s Sons, 1890-93). Vol. 1 (1763-1781), p. 164., accessed at https://oll.libertyfund.org/title/johnston-the-correspondence-and-public-papers-of-john-jay-vol-1-1763-1781?html=true.
Principle of Natural Law as the Foundation for Constitutional Law
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 22: Principle of Natural Law as the Foundation for Constitutional 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. KnipprathThomas Paine became an immensely popular figure during the American War of Independence, primarily on the basis of his works Common Sense, a pamphlet initially published anonymously in 1776, and a series of pamphlets collectively referred to as The American Crisis, published from 1776 to 1783. They were ringing defenses of the American cause, well-written in uplifting and patriotic language easily accessible to ordinary readers.
Yet, only a handful of mourners attended that same Thomas Paine’s funeral three decades later, he having estranged many American leaders by his attacks on the character of George Washington in an open letter published in 1796. As well, his many occasions of writing negatively about organized religion, especially in the three parts of the pro-deism Age of Reason, had alienated much of the American public.
In between, Paine lived in England, where he soon became the target of official displeasure after publishing vigorously anti-monarchist and anti-aristocratic tracts in the two volumes of Rights of Man. While these works were widely read in England, his enthusiastic support of the French Revolution cost him popularity. Fearing prosecution, he fled to France.
Paine was initially very well received in the revolutionary French Republic. He was elected to the National Convention and appointed to its committee to draft a constitution. However, he soon made himself unpopular with the radical faction and eventually was imprisoned and slated for execution. He was saved from a date with the guillotine by the fall of the radical leader Maximilien Robespierre and subsequently was released from prison by the intervention of the new American ambassador, James Monroe.
He stayed a few more years and met Napoleon Bonaparte, who spoke admiringly about him, at least until Paine denounced the future emperor as a charlatan. Not long thereafter, Paine decamped for the United States at the invitation of one of his more steadfast friends, President Thomas Jefferson.
What raised Paine to such heights of fortune was his talent for “plain speaking.” That was also a cause for his lows, when his direct style rubbed influential persons the wrong way. His works during the Revolutionary Period were said to have made independence inevitable by bringing the common people to the cause, the people who might not have understood some of the more refined philosophical arguments made by elite American intellectuals citing elite European and ancient intellectuals. His most famous work, Common Sense, sold 500,000 copies by the end of the war in a country of fewer than 3 million free persons, including children. Jefferson, comparing him to Benjamin Franklin as an essayist, opined that, “No writer has exceeded Paine in ease and familiarity of style, in perspicuity of expression, happiness of elucidation, and in simple and unassuming language.”
The first installment of The American Crisis began with a stirring call to action for a demoralized American army: “These are the times that try men’s souls: The summer soldier and the sunshine patriot will, in this crisis, shrink from the service of their country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like Hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict, the more glorious the triumph.” Four days after its publication in a Philadelphia newspaper, General George Washington had the pamphlet read to his soldiers recovering near the Delaware River after a long retreat from New York. The following night, Christmas Eve, the army crossed that river during a winter storm and, on Christmas Day, won a resounding victory at Trenton, New Jersey.
Paine’s value as a propagandist was not just in the cause of revolution and independence. He was a committed republican, to the point that it alienated some of his erstwhile admirers. The purpose of the quoted document, Dissertation on First Principles of Government, was to reiterate and develop the points about hereditary versus representative government made in Rights of Man. Having concluded that hereditary government was a form of tyranny, and even treason against successive generations, Paine rooted representative government in the inherent equality of human beings. The most significant right which flows from that equality is the right of property in oneself. If government is to be formed, as it must for the better protection of people in their persons and estates, each adult has the right to participate in that process on the principle of equality. If much of this sounds like the philosophy of John Locke, that should be no surprise, in light of the popularity of Lockean ideas at that time. But Paine made those ideas more accessible to ordinary people. Unlike many American state constitutions at the time, Paine rejected property qualification for voting. He did not address female suffrage, although his frequent reference to “man,” if used generically, did not foreclose that possibility.
In the minds of many 18th-century writers on politics, the problem of a general franchise and a purely elective government was the danger it posed of degenerating into a democracy. Paine did not reject such a democracy outright, although he considered it impractical for large political entities such as France and the United States. Those parts of the Dissertation could have fit comfortably in The Federalist. Others, such as the paragraphs addressing the nature of executive power and its formulation in the Constitution of 1787, sat less well.
Paine’s discussion of the importance of voting was consistent with classical American republicanism, which also considered the “republican principle” of the vote as the mainstay of liberty. As a matter of practical application, Paine emphasized the use of majority rule, whether exercised through direct democracy in a town or a representative body. As he wrote in the Dissertation, “In all matters of opinion, the social compact, or the principle by which society is held together, requires that the majority of opinions becomes the rule for the whole and that the minority yields practical obedience thereto.”
Paine was not nearly as agitated about the baleful influence of factions as James Madison was in The Federalist. That noted, Paine’s solution to the potential problem of majority dominance over a political minority was similar to Madison’s explanation in No. 10 of The Federalist about the relative lack of danger from an entrenched majority faction in Congress compared to town or state governments. Paine observed that political majorities change depending on the issues involved, so there is constant rearranging of the composition of whatever constitutes a majority. “He may happen to be in a majority upon some questions, and in a minority upon others, and by the same rule that he expects obedience in the one case, he must yield it in the other.” Like Madison at that time, Paine could not know about the subsequent emergence of organized political parties and party discipline over elected officials.
There is, however, a danger from straight majority rule, whether that rule is exercised through direct voting by whatever class of persons is qualified to vote or in a legislature composed of some class of persons deemed qualified to stand for public office and represent the people. No matter how many laudatory words 18th-century American republicans might put forth about voting and representation, consent of the governed, and majority rule, the temptation to vote for self-interest rather than the res publica, the general wellbeing of society, and to call forth the “spirit of party,” becomes irresistible. As has been noted by cynics, without additional protections “Democracy is two wolves and a lamb deciding what is for dinner.” Or, as the 19th-century New York lawyer and judge Gideon Tucker quipped, “No man’s life, liberty, or property are safe while the legislature is in session.” Jefferson commenting in Notes on the State of Virginia on the structure of the Virginia Constitution of 1776, insisted “An elective despotism was not the government we fought for.” One of the great fallacies of modern political discourse is that we just need to get more people to vote to bring about a just society and to protect personal liberty.
Paine recognized the danger of party spirit and the need for a constitution to restrain the excesses of government, including of government by popular mandate. He decried the brutality of the French Revolution and noted, “[I]t is the nature and intention of a constitution to prevent governing by party, by establishing a common principle that shall limit and control the power and impulse of party, and that says to all parties, THUS FAR SHALT THOU GO AND NO FARTHER.” [All emphases in the original.] In addressing “party,” Paine was referring to self-interest, in this context the interest to gain and exercise unrestricted power. He opined that, “[h]ad a constitution been established [in 1793] … the violences that have since desolated France, and injured the character of the revolution, would … have been prevented.”
Instead, “a revolutionary government, a thing without either principle or authority, was substituted in its place; virtue and crime depended upon accident; and that which was patriotism one day became treason the next.” Lacking a constitution that protects inherent rights causes an “avidity to punish, [which] is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty, he establishes a precedent that will reach to himself.”
Paine’s insistence on a constitution as a check on government focused on the need for the type of protections found in the American system mainly in the Bill of Rights. A declaration of rights had to be more than a collection of meaningless slogans. It had to limit governmental action directly and expressly. Moreover, such limits were not a matter of political grace. “An enquiry into the origin of rights will demonstrate to us the rights are not gifts from one man to another, not from one class of men to another; for who is he who could be the first giver? Or by what principle, or on what authority, could he possess the right of giving? A declaration of rights is not a creation of them, nor a donation of them. It is a manifest of the principle by which they exist, followed by a detail of what the rights are; for every civil right has a natural right for its foundation, and it includes the principle of a reciprocal guarantee of those rights from man to man.” The Constitution likewise enumerates certain rights but expressly does not purport to provide an exhaustive list. As the Ninth Amendment declares, there are other rights retained by the people. It is disheartening to hear so often from law students that the Constitution “grants us rights,” an understanding of the nature of rights at odds with that of the people who drafted and adopted the Declaration of Independence, the Constitution, and the Bill of Rights.
In the American system, the Constitution is not merely a collection of customs and traditions of political practice. It is a legal charter and has the essence of law enforceable, within limits, in courts of law. It is higher law in the sense that, in case of conflict between it and ordinary federal or state statutes, the Constitution prevails. But it addresses expressly only limited topics. Almost since the Constitution’s adoption, there has been debate about the authority of courts to look to other forms of higher law reflective of the principle of inherent rights to limit legislative authority, such as theories of natural law or natural rights. That debate continues, often in trying to define what the ambiguous term “liberty” means in the Constitution, for example, in relation to abortion, marriage, or gun ownership.
Another unresolved question is whether such higher law is superior to the Constitution itself. After all, the Constitution can be amended with the requisite supermajority votes prescribed in Article V of that charter. Suppose that a constitutional amendment were adopted that protected infanticide or that repealed the prohibition of slavery. Would infanticide or slavery, at that point constitutionally permissible, yet be consistent with natural law or natural rights? If the answer is “no,” it shows a recognition that certain rights inhere in each person as a matter of essence, not as a grant from a legislative majority or a constitutional supermajority. The religious skeptic in Paine might not allow him to go as clearly to the source of those rights as did the language of the Declaration of Independence that we are endowed with them by our Creator, but Paine would readily acknowledge the existence of such higher law.
Human Flourishing and the Principle of Creator-Endowed Unalienable Rights
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 21: Human Flourishing and the Principle of Creator-Endowed Unalienable Rights – 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. KnipprathThe Declaration of Independence famously announced that all human beings not only are created equal, but are endowed by their Creator with certain “unalienable” rights. Among those rights are life, liberty, and the pursuit of happiness. These were, as the Declaration also held, self-evident Truths, even to someone like Thomas Jefferson, the document’s author, often described as irreligious, a Deist, or a lukewarm Christian. The phrasing was not unique to the Declaration, but differed slightly from the version by John Locke from whose writing this selection of “natural rights” was drawn. Locke had assigned “property” as the third category of natural rights, the most common formulation, also used, for example, in the Bill of Rights. Moreover, Locke had urged that property was the foundation of liberty and happiness, because of the property each had in his own person, and because government’s abusive power over property, such as through arbitrary taxation, threatened one’s personal liberty and happiness.
Humans derive their equality from being God’s creatures, king and commoner, master and slave, prince and pauper alike. This is essential Christian teaching. The Creator is not an impersonal force or one who has set in motion the laws of nature but otherwise sits back and watches that creation passively as if enjoying a model railroad layout. Rather, he has actively endowed each person with certain unalienable rights. Those rights exist for the purpose of each person’s flourishing as a human being. It is for that end also that governments are established, and on consideration of which the powers of rulers are inherently limited. There is a purpose for government and, by implication, for human law, all directed by the Creator.
There is, then, a normative test for all acts of government. Such acts must be directed only to this purpose and must not violate one’s sacred rights which are beyond the authority of others to transgress. Governmental legitimacy depends on conforming to those Truths. This constitutes the very basis of the social compact, the construct by which, through the consent of the governed, political society was established in the minds of Americans in the late 18th century.
Supreme Court Justice Samuel Chase expressed these principles in 1798 in Calder v. Bull, about the constitutionality of a Connecticut law.
Chase’s distinction between an act of government and a law defines an inherent quality in the latter. It is not enough that a particular statute was adopted by a properly constituted governmental entity in accordance with prescribed procedure. The statute’s substance must meet the standard of a “good” law. Government can bind people to obedience to its directives in two ways. One is through the law’s moral legitimacy, in that it promotes human flourishing and does not conflict with those natural rights. The other is through sheer power of enforcement. The former is stable. The latter is the path to suffering, discontent, and revolution, as set out in the Declaration’s list of grievances against King George.
The natural rights framework of external ethical limits on law builds on a long Western tradition of a universal higher moral law that obligates human lawmakers. Norms for judging a human law must exist outside the structure of that human law itself. The older tradition, going back to ancient Greek and Roman philosophers, conceptualized an order based on law, within which physical and metaphysical forces operated predictably and constantly. Laws imply a lawmaker. As a result, expositors of this approach always assumed a connection between natural law and some divine or morally perfect eternal existence.
There is, however, a difference, in that natural rights metaphysics focuses not on a classic universal order of creation of which humans and the moral laws to which they respond through their reason are a part. Rather, natural rights are inherent in the sovereignty of personhood of each adult derived from existence in a hypothesized state of nature. Some of those natural rights are surrendered as individuals choose to leave that state of nature and join a social compact to form a political society. Others, among them the rights listed in the Declaration, are retained even upon entry into political society.
In the version of John Locke and subsequent expositors of Lockean political philosophy, the decision to enter into such a social compact is made out of rational self-interest to gain better protection of one’s property in person and estate. The decision is made by free will consenting to be governed. Although Plato had written much earlier about government formed by such consent, the concept was insignificant in his work on the best government. It was the influence of the Renaissance and the secular ramifications of the Protestant Reformation that shifted the focus from humans as part of a universal order governed by divine reason and intelligible through our reason, to humans at the center of everything and controlling their destiny through their wills. The philosophic shift to a focus on rational self-interest as the ethical foundation of the state matured in the Age of Reason and the Enlightenment of the 17th and 18th centuries, respectively.
Yet even as the metaphysical cosmology of a divinely-directed order was challenged, there remained a significant problem. Where do these rights originate? Why do humans have rights at all, while horses, rhubarb, and iron ore did not? Why are some rights “unalienable”? Which rights? Some social contract theorists veered close to severing the entire matter from its ancient connection to divine morality. Thomas Hobbes’s version of the social contract laid out in Leviathan, a work best considered as an apologia of rational totalitarianism and glorification of the absolute State, is a prime example. The German philosopher Samuel Pufendorf, writing in the late 17th century, studied Hobbes. He was less anticlerical and less militant than Hobbes, but still deified the State by establishing it as a “moral person” charged with the ordering of rights and duties. His work became a source of legitimacy for European “enlightened despots” in the 18th century.
But old concepts die hard, especially if they reflect crucial foundational considerations. Locke quite overtly connected his theory of rights to God. Near the beginning of The Second Treatise of Government, Locke defined man’s liberty in his state of nature as governed by a law of nature that none may harm another “in his life, health, liberty, or possessions.” Why not? Because “men being the workmanship of one omnipotent and infinitely wise Maker—all the servants of one sovereign master, sent into the world by his order, and about his business—they are his property whose workmanship they are, made to last during his, not another’s pleasure;…” Because of that essential equality, “there cannot be supposed any such subordination that may authorize us to destroy one another.” Neither may anyone, “unless it be to do justice to an offender, take away or impair the life, or what tends to the preservation of the life, the liberty, health, limb or goods of another.”
The connection to God as Creator is as fundamental to the existence of inherent, natural rights in humans and the correlative duties owed to others as it is to the existence of a universal moral order within which humans live and which is the source of their duties and rights. Moreover, recognizing this relationship and the existence and unalienability of these basic rights is an exercise of reason itself. Hence, these are self-evident Truths to any rational being and need no further proof for Locke, Jefferson, or the Americans of the Founding Era more generally.
There are problems with this reasoning. It depends on assumptions that some may not share, such as a belief in the existence of God. Some may scoff at the idea of a pre-political “state of nature” as either an anthropological fact or even an appropriate political construct. Less intellectually rigorous individuals may get lost by its hyper-rationalism.
Certainly, there has been no shortage of critics. In Candide, the French philosopher and satiric writer Voltaire mocked the Enlightenment’s faith in reason and the propensity of his academic contemporaries to construct idealized systems for the progress of humanity based on those writers’ conception of self-evident truths in turn based on reason. The Scottish parliamentarian Edmund Burke, representing the views of many conservatives, reacted against the version of natural rights in the French Declaration of Rights as revolutionary and as delusional about the “monstrous fiction” of equality when viewed thorough the experience of “men destined to travel in the obscure walk of laborious life.”
Liberal utilitarians reacted against the lack of concreteness of the doctrine. The English philosopher Jeremy Bentham derided it as “nonsense on stilts.” He described such rights as ambiguous and not empirically verifiable. He asserted that rights can only come from human law, not from “imaginary” natural law. Thus, to call “liberty” and such concepts natural “rights” was a perversion of language to Bentham. The idea that humans might possess rights beyond the control of human law was anarchic and directed “to excite and keep up a spirit of resistance to all laws—-a spirit of insurrection against all governments.”
Romanticism in the 19th century and its resultant European nationalism, especially in Germany, turned away from the Enlightenment’s optimistic universalism and refocused rights and law through a historical lens, the peculiar history and ancient customs of each national community. The Anglo-American movement of legal positivism taught that rights were the result of human law, and that the only criterion for law was that it was the command of a political sovereign. Thomas Hobbes would have approved. The Progressives of the 20th century reduced the notion of law to utilitarian legislation or administrative regulation, and characterized rights as whatever such legislation or regulation permitted. Formerly, such grants would have been described as “privileges.”
The current approach continues to retreat from the Founders’ self-evident Truths about the relationship among humans, their Creator, and their unalienable rights. All over the Western World, there is a trend away from the traditionally dominant view of God directly involved in human flourishing. The deification of the State continues. With a few unorthodox exceptions, rights today are not viewed as something with which each individual is inherently endowed. Rather, rights increasingly are claimed to belong to certain groups, with a manichaean division of humanity into oppressors and victims, which reflects the Marxist origins of the approach. Unlike the economic classification of traditional Marxism, today’s groups are defined by characteristics of physical or psychological identity.
Rights today are those activities which the community or some elected or merely appointed official is willing to let people undertake. Rights fundamental to human vitality as social creatures, such as the right to interpersonal association and the liberty of moving about, are curtailed or prohibited by stoking fear and panic over contrived emergencies earlier generations would have scoffed at. At best, today we exercise rights at the sufferance of a majority of the community. We have none inherently, because everything is based on human will and consent. Today’s human rights declarations are simply lists promulgated by functionaries of, for example, the United Nations. The drafters of its Declaration of Human Rights consciously refused to include Jeffersonian language about the nature and source of rights in the document. One might be excused for being unimpressed by such lists overseen by a council composed of China, Cuba, Eritrea, and other habitual violators of essential human rights. What one human lawmaker can legitimately grant, a subsequent one can legitimately rescind. Before their War of Independence, Americans pointed to the Magna Carta of 1215 as a source of their ancient rights which the British government was said to be violating. But that tactic fell out of favor when it was discovered that the document repeatedly said that the king was “granting” those rights, not that people possessed them inherently.
Finally, there are today no Truths with a capital “T,” self-evident or otherwise, except, perhaps, an unassailable Truth that there are no Truths. In the past, skeptics claimed that our minds and reason are not sufficiently incisive to discern such Truths, and that, therefore, the best we can humbly do is to make utilitarian decisions on what is perceptible to us and appears to be the best result for our society at the time. These are truths with a small “t,” which can claim no inherent superiority over another society’s truths.
Today, following radical “critical studies” theory, “truth” is deemed a narrative imposed by oppressors to perpetuate power relations. In short, there simply is no Truth. Everyone can create his or her own truth. At the same time, in an ironic twist, no one (at least not those denounced as oppressors) may disagree or may challenge another’s truth, no matter how absurd such “truth” might appear to an observer. Not only may one not say that the emperor has no clothes. One must profess that the emperor is truly wearing clothes if he identifies his naked body as clothed. Who can really know? There is no “right” answer, because there is no objective reality. Plato weeps.
The result of such extreme subjectivism is the chaos it creates in society. To achieve a fulfilled life that balances both parts of human nature, the unique aspects which shape each individual and the character of humans as social creatures, people seek order. That is why revolutions always end, and Maoist plans for “permanent revolution” are merely dreams, albeit nightmarish ones. But when there is no inherent right or wrong, just competing random perceptions with no hope of shared objective reality, order comes about through the unrestrained exercise of power.
However, no government claims to act simply on the basis of raw power. The reason is that humans also have an innate attraction to ethics, although the extent of such innate moral sentiments has long been a topic of debate. Therefore, an ethical basis for government is quickly put forth, a justification for the duty to obey society’s rules. In the past, the ruler’s legitimacy might simply have been based on a claim that he is the embodiment of a divine entity, as was the case in many non-Western cultures. Today, “oppression theory” seeks to vest political legitimacy in the actions of those or which benefit those who are anointed the oppressed and to divest it from those stigmatized as the oppressors.
The contribution of Western political philosophy has been to desanctify the ruler, first by bringing him down to the rest of the community within a broader order governed by a universal moral law created and administered by God. The price for his rule was that he must not transgress against that moral law, which sought to protect the community from arbitrary exercises of power contrary to human flourishing. Though the conceptual structure later was secularized and redefined on the basis of rule by popular consent, the ruler still must not transgress against certain individual rights essential to humans and their flourishing. Those rights, too, are universal, and arise out of the universal moral law created by God.
The very longevity of such basic assumptions about the relationship among individuals, their rights, the rulers, the moral law, and God attests to their conformity with human nature and their connection to human flourishing. That longevity is evidence of their Truth. Indeed, it may be said, perhaps with some embellishment, that such Truths are self-evident. The words of the Declaration of Independence are expressions of optimism and hope. They will prove to be more significant and will outlast the current depressing fads of sanctifying or demonizing persons or actions based on arbitrary group identity, decoupling law and political action from ethical standards founded in a higher order, and rejecting the existence of an objective reality.
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Principle of Foreign Policy Based on a Standard of Freedom and Independence
90 in 90 2023, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 20: Principle of Foreign Policy Based on a Standard of Freedom and Independence – 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 StudiesThomas Paine, in The American Crisis, December 19, 1776, Pamphlet 1, in his speech on “These are the times that try men’s souls” – not quitting in their fight for independence, writing how tyranny is not easily conquered, “Britain, with an army to enforce her tyranny, has declared that she has a right (not only to tax) but “to bind us in all cases whatsoever.”
The same principles that breathed life into Thomas Paine’s resistance to tyranny and justified the American Revolution also formed the basis of the American sense of justice in foreign policy after 1776. The American founders believed that the guides derived from the principles of the Declaration of Independence would better enable them to formulate policies that would satisfy the demands of interest and justice – that is, that would do justice to our own citizens by securing their rights, but would also do justice to foreign people by respecting their independence. In essays #17 and #18 we saw that, according to the principles of the American Founding, the American people have a right to domestic sovereignty and political independence; and because government has a moral obligation to secure the rights of its citizens, the government of the United States has a duty to preserve the nation’s political independence. These same principles provided further guides that would help American statesmen do a better job of securing justice for our nation and doing justice to others as well.
American statesmen believed, first of all, that when possible, peaceful means to resolve conflicts with other nations should be preferred. The founders practiced the doctrine of “peaceful appeals when possible” in the American Revolution itself, by making every possible appeal to the King for a peaceful resolution to the conflict before resigning themselves to an appeal to heaven. The manner in which Americans came to declare the British to be not only a foreign people but enemies was a long process involving many attempts to reconcile differences peacefully. After the “long train of abuses” detailed in the list of grievances against the British, for example, the Declaration of Independence emphasized that “in every stage of these oppressions we have petitioned for redress in the most humble terms: Our repeated petitions have been answered only by repeated injury.” In 1775 the Continental Congress had issued the “Olive Branch Petition” to King George III in 1775 in a last effort to persuade him to come to his senses, stop further bloodshed, and prevent the escalation of hostilities.[1] The appeal to the King was unanswered, and so the Americans were forced to make the “Appeal to Heaven” through a resort to arms and, eventually, by declaring independence.
Second, Founding-era statesmen believed that the United States should respect the equal right of other nations to political independence as much as possible. The right to political independence, derived from the fundamental “Laws of Nature and of Nature’s God,” is a universal right, not an exclusive right of the people of the United States. This right to political independence, therefore, also means that the United States should respect the political independence and domestic sovereignty of all other nations as much as our own security will permit. Just as we expect other nations to respect the independence and domestic sovereignty of the United States as much as their sense of security will allow, we are also obligated to respect the independence of all peoples and their right to consent to their own choice of government, laws, and policies as much as our own sense of security will allow. We see this axiom expressed very clearly in James Kent’s Commentaries on American Law in 1826:
The American founders believed that by following these two fundamental principles – preferring peaceful measures and respecting the independence and sovereignty of other nations, as much as possible – the United States would avoid giving just cause for war to other nations. This end would also be promoted by performing our engagements, fulfilling treaty obligations, paying debts, and showing little or no favoritism toward particular nations.
We can see these basic principles of American foreign policy thought displayed in many symbolic images. For example, the Gadsden flags popular during the American Revolution portrayed a rattlesnake with the words “Don’t tread on me” on them. This signified America’s willingness, like the rattlesnake, to leave others alone when not threatened; but it also showed the willingness of the United States to strike powerfully and quickly when “meddled with.” This also reflects the claim in the Declaration of Independence that “we hold the rest of mankind, Enemies in War, in Peace Friends.”
[1] Continental Congress, “The Last Address of the People of America to the King,” 5-8 July 1775.
[2] James Kent, Commentaries on American Law, 1826.
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Principle of Peace Through Strength
90 in 90 2023, Robert Brescia, 6. Guest Constitutional Scholar Essayists, Blog Essay 19: Principle of Peace Through Strength – Guest Essayist: Robert Brescia, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Robert Brescia, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
“To be prepared for war is one of the most effectual means of preserving peace.” —George Washington
“It is a principle incorporated into the settled policy of America, that as peace is better than war, war is better than tribute.” —James Madison
“We know only too well that war comes not when the forces of freedom are strong, but when they are weak. It is then that tyrants are tempted.” —Ronald Reagan
Introduction
Peace through strength (PTS) – this is a recurring theme throughout the history of our great nation. It’s as old as ancient civilizations such as China’s Sun Tzu (author of The Art of War), and as new as today. I’ve heard people assert that the United States should only increase its military capabilities if it is attacked somewhere in the world. Others say that we shouldn’t augment our defensive or offensive strengths unless we are attacked on our homeland. That’s a relatively shortsighted strategy – the world is way too small for that to be effective. While some believe that you should only focus on military strength upon being attacked, either on the world stage or on our own turf, it is too late at that time to assemble and employ a suitable riposte.
Enter the strategy of peace through strength. It has been supported by several of our Founding Fathers and our U.S. Presidents from 1789 to today. The basic premise of PTS is that if the United States builds a military capability so great, with an extraordinary over-match ratio to potential attackers, that no nation on earth would dare to attack us because they know it would bring their swift and complete destruction.
By virtue of our PTS strategy, peace in our homeland would be achieved and maintained. If one accepts such a premise, then the next logical question might be, “to what extent do we need to arm ourselves to be that deterrent that we seek?” That would entail a constant comparative exercise, accomplished by thinktanks and large consultancies who monitor the military capacities of world nations.
A second, related question could be, “does this strategy only include conventional armaments or would it also include nuclear?” A third question might also be, “have we any empirical evidence that a PTS strategy was or is successful?” I might add a fourth question, but it has no matter-of-fact answer and that would be, “would super-arming our nation constitute a temptation for present or future political leaders to use that power for much the same reason that President Clinton claimed during his impeachment – “because I could.”
Historical Tie-in of Peace Through Strength
PTS is sometimes confused or interleaved with RealPolitik. RealPolitik is the result of a collision between Enlightenment ideas that our Founders espoused and the fast development of nation-states in the second half of the 19th century. On the one hand, we had political leaders who espoused ideologies and liberal type policies while, on the other hand, countries began the empirical quests for more power and domination, seeking colonies to aggrandize their positions on the word stage.
RealPolitik is a result of that strategic conflict and it is occasionally very tempting to associate PTS within it. The next evolution of these ideas extended RealPolitik and PTS into political realism. This happened when world nations began practicing international relations to try and justify their actions. We saw two generally oppositional ideas emerge: 1) policy actions and international relations are primarily concerned with the extension and growth of power and, 2) policy actions and international relations are the manifestation of a desire for national survival.
Summary and Conclusion
While not a subtle hint or a visible charge by our Founding Fathers for us today, PTS captures the American spirit of wanting to be protected against the bad will and actions of other nations. However, the reality of politics and national priorities in our times is such that we may not have the luxury of arming ourselves to the teeth, not to mention continuously updating our military arsenals with the latest technologies. We have nondiscretionary social entitlements such as Medicare and Social Security that must be paid up front. We also have a massive national debt that our politicians can’t seem to get a hold of. American politicians seem to have difficulty fending off involvement in foreign struggles. Consider President Bush’s war waged in Iraq because of his desire to reestablish U.S. world leadership after September 11, 2001. One close adviser revealed that the thinking behind the war was to show: “We are able and willing to strike at someone. That sends a very powerful message.” Consider President Obama’s co-invasion as well with NATO of Libya in 2011 – the stated rationale was to support Libyan rebels but then Secretary of Defense Robert Gates said, “Publicly, ‘the fiction was maintained’ that the goal was limited to disabling Colonel Qaddafi’s command and control. Given that decapitation strikes against Qaddafi were employed early and often, there almost certainly was a decision by the civilian heads of government of the NATO coalition to “take him out” from the very beginning of the intervention.”
My own conclusion is that the Founding Fathers had a period-appropriate notion of PTS, contextually supportive of the big ideas behind it, and resplendent with hope and faith for future peace. There are other strengths, however, that the United States possesses and nurtures which are undeniably elements of national prowess. These include our homeland values of courage, benevolence, individualism, economic opportunity, and generosity. These and other American values continue to attract many to our shores. Along with military superiority, they make us strong and resilient. That’s a certain broadening of the word strength in the term peace through strength.
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Preventing Loss of Independence to Foreign or Global Governments by Upholding the Principle of America’s National Sovereignty
90 in 90 2023, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 18: Preventing Loss of Independence to Foreign or Global Governments by Upholding the Principle of America’s National Sovereignty – 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 StudiesThe previous essay, #17, showed that, according to the principles of the Declaration of Independence, the people of the United States of America have a right, from the “Laws of Nature and of Nature’s God,” to establish their independence and thereby their national sovereignty. Those same principles, however, that establish the right of a people to independence and sovereignty, also impose a duty upon government to protect and maintain that independence and sovereignty once established. This essay will focus further on the principle of America’s national sovereignty upon preventing loss of independence to foreign or global governments acting as with binding authority in attempts to undermine the United States.
The duty of government to maintain national sovereignty and political independence arises from two arguments of the Declaration of Independence regarding the very nature and purpose of government. First, the Declaration of Independence asserts that it is the equal right of every people, sharing the same political principles, to form through consent a government laid on such foundations “as to them shall seem most likely to affect their safety and happiness.” The Declaration of Independence also asserts that “governments are established among men” for the purpose of protecting the natural rights of its citizens. These principles therefore impose a duty upon our government, because independence is necessary in order for us as a people to determine what must be done for national security, which is, in turn, necessary in order for our citizens to peacefully enjoy their natural rights in the pursuit of happiness. A nation must maintain its independence, therefore, free from the political control of any other nation, in order to remain master of its own fortunes. Only when it has such liberty can a nation freely and prudently determine for itself what is necessary for the preservation, security, and happiness of its own people.
The importance of maintaining political independence can also be seen in the writings of American Founder James Wilson, signer of the Declaration of Independence, framer of the United States Constitution, and one of the original Supreme Court Justices appointed by President Washington. In his important work Lectures on Law, Wilson clearly echoed the Declaration of Independence on the right and duty of maintaining independence:
The right and duty of the United States to defend its national sovereignty was also articulated by American courts well into the nineteenth century. In Schooner Exchange v. McFaddon (1812), for example, Chief Justice Marshall wrote that “[t]he world [is] composed of distinct sovereignties, possessing equal rights and equal independence.” In light of those equal rights, Marshall continued:
In its larger sense, political independence especially means the liberty that a people or nation has by right to decide when to engage in war or continue in peace. George Washington understood well that to have full freedom regarding such decisions, the United States should have as little political connection with other nations as possible, by which they might have an undue influence in determining what actions we might – or must – take. This especially meant that we should avoid as much as possible engaging in permanent political or military alliances with other nations – a lesson the United States learned through the controversy over the French Treaties during the French Revolution in the 1790s. During this time, Americans were passionately divided over whether the treaties with the French (agreed to by Congress during the American Revolution) obliged the United States to assist France in its wars against other European nations during the French Revolution. The issue nearly embroiled the United States in the French Revolution against its will and contrary to the desire of Congress.
Reflecting on this challenge to American political independence in his Farewell Address, Washington wrote, “The Nation which indulges towards another an habitual hatred, or an habitual fondness, is in some degree a slave. It is a slave to its animosity or to its affection, either of which is sufficient to lead it astray from its duty and its interest.” The peace and sometimes the liberty of nations, Washington wrote, had frequently been the victims of such foreign attachments. This is especially so when “the policy and will of one country, are subjected to the policy and will of another” through permanent alliances. Washington understood, therefore, that having “command of one’s own fortunes” could hardly apply to a slave any more than to a people who “interweave [their] destiny with that of any part of Europe, [or] entangle [their] peace and prosperity in the toils of European Ambition, Rivalship, Interest, Humour or Caprice.” Only when a people remains politically independent can it be free to select the means most conducive to its own safety and happiness; or, as Washington wrote, free to “choose peace or war, as our interest, guided by justice, shall counsel.”[3]
[1] James Wilson, Lectures on Law, in Collected Works of James Wilson, edited by Kermit L. Hall and Mark David Hall, Volume I (Indianapolis: Liberty Fund, 2007), 529 and 536.
[2] Schooner Exchange v. McFaddon (7 Cranch 116 1812), The Founders’ Constitution, http://press-pubs.uchicago.edu/founders/documents/a1_8_10s7.html (accessed January 5, 2010)(emphasis added).
[3] Washington, Farewell Address, 1796.
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Principle of America’s National Sovereignty
90 in 90 2023, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 17: Principle of America’s National Sovereignty – 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 Studies“That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear; it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people.” – Thomas Jefferson in his pamphlet, “A Summary View of the Rights of British America” July 1774, Williamsburg, Virginia.
This essay by Thomas Jefferson, written two years before Congress would declare American independence, contains many of the same arguments that would eventually justify the separation of Great Britain in 1776. Here Jefferson speaks of the natural rights of “a free people,” and calls the King a “servant” rather than the “proprietor” (or owner) of the people. As essay #9 of this study showed, Americans had been developing the idea that those who govern must do so for the good of the people, rather than use their subjects for their own good, and Jefferson’s argument in “A Summary View” echoes that sentiment.
It is also important to note that the quote from Thomas Jefferson’s “Summary View of the Rights of British America” reveals that the American Revolution involved more than the legal separation of the United States from Great Britain. It was at its core an ideological movement that was motivated by a political philosophy shared in common not only by the prominent movers of events but by Americans in general. This philosophy, commonly referred to as social compact theory, led to and supported the principles contained in the Declaration of Independence, which in turn expressed the principles upon which American national sovereignty and independence are justified.
The Declaration of Independence begins and ends with statements regarding the right of a people to establish and maintain their national sovereignty. The Declaration asserts that “one people” are entitled to assume a “separate” station from all others, and they derive this right – a right that is shared equally by all peoples – from “the Laws of Nature and of Nature’s God.” It begins with the claim that the “laws of Nature and Nature’s God” entitle “one people,” when necessary, to “dissolve the political bands which have connected them with another,” and “to assume among the powers of the earth” a “separate and equal station.” It ends with the claim that as “free and independent” states, the United States have dissolved “all political connection between them and the State of Great Britain,” and therefore “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which Independent States may of right do.”
The opening and closing paragraphs of the Declaration of Independence, therefore, have this principle in common – for a people or nation to be “free and independent,” it must totally dissolve “all political connection between them” and other nations. The immediate purpose of the Declaration of Independence was to formalize our separation from Great Britain; but it also expressed a fundamental principle – to be truly free and independent (i.e., sovereign over its own affairs) the United States ought to have no political connection with any other nation.
Like individual liberty, national independence is necessary to allow one people, through their government, to decide for themselves how best to secure and exercise their individual liberty. The first paragraph of the Declaration of Independence therefore transposed the principle of individual liberty to apply to whole peoples and nations. Nations are described as having the right, by the “Laws of Nature and of Nature’s God,” to an equal station as “free and independent” states. And individuals are described as having the equal unalienable or natural right to liberty. The Declaration of Independence teaches us, therefore, that there is an inseparable connection between individual liberty and political independence – or what one might call “national liberty” – and it establishes this fundamental relationship in its very first paragraph.
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Principle of Citizenship and Love of Country
90 in 90 2023, Tom Hand, 6. Guest Constitutional Scholar Essayists, Blog Essay 16: Principle of Citizenship and Love of Country – Guest Essayist: Tom Hand, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Tom Hand, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read By Constituting America Founder, Actress Janine Turner
Citizenship goes well beyond being a citizen. According to the Fourteenth Amendment, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” But it does not require citizens to do anything to maintain it. It confers a right but does not demand a responsibility.
Practicing good citizenship, doing things such as voting, serving your country, following the law of the land, and getting involved in your local community is that unstated, corresponding responsibility. It is that one overarching shared responsibility that gives people common ground and brings them and binds them together and makes cities and towns, rich and poor, men and women, and all races one nation.
So how does a nation inspire its citizens to voluntarily practice good citizenship? How does a nation get its people to do something that takes effort but is not required? What does it take to move citizens beyond “self” and towards the “whole,” beyond “me” and towards “us?”
It is really quite simple; it is love of country. It is human nature for one to treat better and care for more thoughtfully that which they love. It is no different with citizenship. For citizens of the United States, those that love the country best will serve it best. It was certainly the case during our founding era.
Amor patriae is Latin for love of country. It is a noble concept, but what does it mean and how is it manifested? Is it done by flying a flag from your front porch on Independence Day or singing a heartfelt Star Spangled Banner at a ballgame or cheering as America wins yet another gold medal at the Olympics? It is all that but so much more.
Men more eloquent than I have discussed it through the ages. Seneca, the great Roman philosopher, stated “Men love their country, not because it is great, but because it is their own.” Seneca is correct. In many facets of life, we justly love that which is ours, including and even especially, our country. This love of country is not determined by an individual’s wealth but runs deeper than that and transcends material property and wages.
Love of country requires an unselfishness that drives men to reach for a higher place and to love something greater than oneself as Katharine Lee Bates described in America the Beautiful.
O beautiful for heroes proved
In liberating strife,
Who more than self their country loved,
And mercy more than life!
Love of country amongst a people leads to a unity of purpose that is critical to a nation’s success. As George Washington noted in his Farewell Address, “The Unity of Government which constitutes you one people is also now dear to you. It is justly so; for it is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize.” Washington continues that we must be ever on our guard and “watching its preservation with jealous anxiety…and indignantly frowning upon the first dawning of every attempt to alienate any portion of our Country from the rest.”
Love of country is inspirational and creates pride deep within the soul for one’s homeland and those without this feeling are to be pitied. As Walter Scott lamented for such a man in The Lay of the Last Minstrel.
Breathes there the man, with soul so dead,
Who never to himself has said,
This is my own, my native land!
Love of country is a beautiful thing, but it can be a terrible beauty for it compels us forward down a path we may otherwise lack the courage to take as described in the sad Irish ballad The Patriot Game.
For the love of one’s country is a terrible thing.
It banishes fear with the speed of a flame,
And makes us all part of the Patriot Game.
Love of country can fade from the forefront of our minds and the United States, and its countless blessings, can be taken for granted. But sad is the man who would lose his country as Edward Everrett revealed in his short story The Man Without a Country. This poignant tale tells of Philip Nolan, a young American officer turned traitor who wishes to be rid of his country and is granted his wish.
Near the end of his life, Nolan, who has yearned for his wish to be reversed, scolds a young sailor for expressing disgust with the United States: “Remember boy, that behind all these men…behind officer and government, and people even, there is the Country Herself, your Country and that you belong to her as you belong to your own mother. Stand by her boy as you would stand by your mother.”
Love of country was the single greatest influence upon our Founding Fathers as they formed our nation and our Constitution. But their love of country was not something they sought, it developed freely within each Patriot and love of country inspired each in his own way.
Love of country propelled George Rogers Clark down the Ohio to Kaskaskia and then across the frozen wilderness to capture Fort Sackville and Vincennes in 1779, securing the Ohio Valley for America.
Love of country led Daniel Morgan to gather a company of stalwart Virginia riflemen and lead them to Boston soon after the “shot heard round the world” was fired at Lexington and Concord and continue on to his memorable victory at Cowpens.
Love of country caused Nathanael Greene to leave his successful merchant business and Caty and the children and take up arms for a righteous cause and drive Cornwallis from Georgia and the Carolinas.
Love of country influenced John Adams, the Puritan Patriot from Boston, to forego his prosperous law practice and travel to Philadelphia and the First Continental Congress in 1774 to start the march towards nationhood, stating “Sink or swim, live or die, survive or perish, I am with my country…You may depend upon it.”
And it was love of country that inspired George Washington, one of the wealthiest men in the colonies and arguably the man with the most to lose, to risk it all to lead a fledgling army in a war that seemed unwinnable. Later, when the nation he had helped bring forth was struggling under the Articles of Confederation, Washington again came to her aid to lead the Constitutional Convention and guide us as we learned how to govern in a Constitutional republic. The Indispensable Man did all this for love of country.
So why should love of country matter to us today? We must recognize that it birthed our country, it grew our country, and, without it, we could lose our country.
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A Founding Built Against Unbridled Power: Principle of Civic Duty to Rein In Overreaching Government
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Scot Faulkner Essay 15: A Founding Built Against Unbridled Power: Principle of Civic Duty to Rein In Overreaching Government – 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
“They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?” – Patrick Henry, in a speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775
When and how should citizens confront abuses of power by their government?
This is a fundamental question that has shaped political discourse for centuries.
Patrick Henry, and the other colonial leaders who galvanized opposition to the predations of George III, drew upon English legal precedents and Enlightenment philosophy. They built their rebellion against tyrannical overreach on foundations laid by their English ancestors.
There has always been conflict between those who desire unbridled power and those they govern. Often this conflict was settled through force of arms. On June 15, 1215, it was settled by force of law.
Rebelling English nobles forced King John to sign a “Great Charter of Freedoms,” now known as the Magna Carta. The Charter became the basis for English Common Law and the laws of most English-speaking nations, particularly the United States.
While the Magna Carta focused on individual rights and the legal system (such as trial by jury), Clause 61 empowered citizens to rein in overreaching government. It created a Council of 25 barons to monitor and enforce King John’s compliance with the Magna Carta. This included controlling feudal payments to the Crown, and by implication how the Crown spent “public” funds and governed. Clause 61 included real sanctions: If John did not comply with the provisions of the Magna Carta, “the 25 barons were empowered to seize the King’s castles and lands until, in their judgement, amends had been made.”
King John colluded with the Pope to undermine the Magna Carta, but his successors reissued it and it became a formal part of English law.
During the 13th through 15th centuries, Magna Carta was reconfirmed at least 32 times. The first item of parliamentary business was a public reading and reaffirmation of the Magna Carta.
The Stuart line of kings challenged the four-hundred-year Magna Carta balance of power to their peril. King Charles I asserted he would not be reined in by Parliament. This led to civil war and his beheading in 1649. During the post-Civil War Restoration, Charles II adopted a more passive approach to governing. However, James II ignored his elder brother’s compliance with Parliamentary restrictions which led to his being overthrown during the “Glorious Revolution” of 1688.
Parliamentary ascendancy, and ultimate permanent dominance under a “Constitutional Monarchy,” was buttressed by philosophical publications. These writings gave broader context to how power must be reined in and how it should be done under law.
In 1680, Henry Care published English Liberties. It established individual rights as bestowed at birth, not by government. Care formally asserts,
He describes the balance of a reined-in government, “qualified Monarchy, where the King is vested with prerogatives sufficient to support Majesty; and restrained from power of doing himself and his people harm.”
Care supported his philosophical doctrine with a compendium of foundational political documents. He made the Magna Carta central to history and to the contemporary legitimacy of individual freedom and control of government overreach. English Liberties became very popular in British reform (Whig) circles and widely read among leaders in the American colonies.
Even more popular among colonial thinkers and activists was John Locke’s Two Treatises of Government published in 1689.
Locke’s Second Treatise describes the importance of a civilized society based on natural, God given, rights. It supports the social contract theory of the governed consenting to limited government in exchange for a secure and stable environment in which individual activity and commerce can thrive. It became the primary conceptual work defining traditional 18th and 19th Century Liberalism.
Locke’s Second Treatise was frequently cited in Colonial debates about George III’s taxes and other punitive measures that comprised the King’s overreach and over reaction to colonial freedom.
Locke describes the balance of power between an executive (or monarchy) which is a “Power always in being that must perpetually execute the law” and the legislature which is the “supreme power of the Common wealth…governments are charged by the consent of the individual, i.e. the consent of the majority, giving it either by themselves, or their representatives chosen by them.”
Locke promotes the proposition that a full economic system could exist within the “state of nature.” Property predates the existence of government. Society should be dedicated to the protection of property. He expanded on Care’s “social contract” theory and explains how the “consent of the governed” may be withdrawn when power is abused, thus serving to rein-in government overreach.
The philosophy of Two Treatises is echoed throughout the Declaration of Independence. Thomas Jefferson wrote: “Bacon, Locke, and Newton – I consider them as the three greatest men that have ever lived, without any exception, and as having laid the foundation of those superstructures which have been raised in the Physical & Moral sciences.”
The foundations of the Magna Carta, English Common Law, and the writings of Care and Locke birthed our nation. They guide and inspire citizen oversight and empowerment to this day.
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Principle of Civic Duty to Petition the Government for a Redress of Grievances
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 14: Principle of Civic Duty to Petition the Government for a Redress 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
“Congress shall make no law… abridging the freedom… to petition the Government for a redress of grievances.” – United States Constitution, Amendment 1
A key element in America’s quest for independence was the ire that certain colonists felt at being taxed without representation (an overly simplified view of decades of frustration at a variety of policies imposed by the British Crown on Colonial America without the consent of the citizens of the colonies). Part and parcel of this was the difficulty the citizens had in presenting those grievances to the crown (or parliament), and the perception that those who did voice concerns or opposition were singled out for punishment by the government.
So as the Constitution was being drafted, and further constraints were being placed on the power of government via the Bill of Rights, the founders included language in the First Amendment ensuring that citizens would retain a right to so petition the government when they were aggrieved—with a corresponding assurance found in the Fifth Amendment, that when such substantive petitioning is made, “due process” is accorded to the petitioner i.e., that a fair and just process is made available to the person or persons petitioning.
When most people consider this, they think about the right of individuals to advocate or otherwise speak their minds before legislators, i.e., to offer their opinions on legislation. But in an era in which policy is increasingly being delegated to the Executive Branch, it is important to examine how this right, or civic duty, is protected within the context of the “administrative” state.
When Congress passes a law, it is then up to the Executive Branch to interpret and enforce that law, to “administer” it, in other words, and thus the “administrative” state. The more vague that law might be (and sometimes not so vague), the greater leeway an agency has to interpret that law.
For example, Congress passes the Clean Water Act in 1972. In that law, they make it illegal to pollute a navigable water of the United States. Because Congress failed to define words or phrases like “pollute” or “navigable” or “water of the United States,” they left it up to the Executive Branch to define them.
The right to petition then plays a singular role in this. The agency presents its proposal for how to define terms or, more broadly, how they plan on interpreting and enforcing any piece of legislation, and it then opens a process whereby the public can comment on their proposals.
This process is government by a law known as the “Administrative Procedure Act” (APA). The APA was passed by Congress in 1946 in order to standardize the petitioning/commenting process across the federal executive branch. Prior to that point, each agency had the discretion to create its own process, something that could make overly complicated the ability of citizens to exercise their right to petition for redress.
Now, with few exceptions, the process by which someone can “comment” on a “rulemaking” is the same regardless of whether someone is filing that comment with the Occupational Safety and Health Administration (OSHA), the Department of Health and Human Services (HHS) or the Department of the Interior. A “rulemaking” is the standard term whereby an agency goes through the process or creating or amending the regulations that have been created out of congressional legislation. A “comment” is just that, the opinion filed by a person or group regarding that regulatory proposal.
At its most basic level, the process works this way: either Congress passes a new law, or amends a law, or the agency wants to make changes to existing policies, and they announce this in a daily publication called The Federal Register. They offer their proposal in something called a “Notice of Proposed Rulemaking” or, less frequently, an even earlier step called an “Advanced Notice of Proposed Rulemaking,” and tells the public how they can comment on those proposals.
Anyone can file a comment—and it has never been easier to do so. Most agencies utilize an online portal called Regulations.Gov to both announce proposals and solicit for comments, and comments can be submitted online with a matter of clicks.
It is a system that the founding fathers would have enthusiastically applauded. Though many would have been horrified at the concentration of power in the Executive Branch, the idea that any citizen could, with the touch of a button, voice their substantive concern about a policy proposal would have heartened them at the same time. They just would have been concerned that not more people were aware of this.
As part of the APA, agencies are required to answer such “petitions” (when they are substantive) in the publication of their “final rule” i.e., the finalized regulatory policy—either demonstrating where they have made changes to the proposal in accordance with those substantive comments, or explaining why they didn’t make such changes. Failure to do so opens the regulation to court challenges, on the grounds that the new rule is “arbitrary, capricious, an abuse of discretion or otherwise not in accordance with the law.”
Even better, the APA doesn’t require that the citizenry wait until the agency makes a regulatory proposal in order to have changes to a rule made. Another aspect of the manifestation of the right to petition for the redress of grievances within the APA is the right to petition a regulatory agency to open up a rulemaking—again, with the agency being required to respond if they decide to not go through a new rulemaking process.
While the APA’s rulemaking process applies to nearly all agencies, agencies within the national security and defense spheres are generally recognized to be exempt, though some will engage in this “notice and comment” process when they have policy changes that they know will be controversial or otherwise of tremendous interest to the public. Likewise, transactional decisionmaking and contracting are not open to this APA’s process (though citizens always have the right to comment on such issues with those agencies).
What is worth noting is that the deliberative process of the APA can be frustrating, especially to policymakers, and the citizenry needs to be on guard for when agencies attempt to sidestep the APA. Increasingly, agencies are turning to what they claim are quasi-rulemakings—smaller proceedings that these agencies claim are not subject to the full APA notice-and-comment process. These agencies create guidance documents and interpretation letters purporting to carry the full force of regulatory law, but aren’t subject to the full vetting that a rulemaking allows.
The Competitive Enterprise Institute refers to such activity as “regulatory dark matter”—and while in January of 2017 the President created an executive order to substantially rein in regulatory dark matter, the following administration undid that executive order almost immediately upon taking office in 2021.
Thankfully, Congress is becoming ever more aware of the problem of regulatory dark matter, and is working to hold the executive branch accountable.
In the end, given the size and scope of the modern administrative state in the U.S., the notice and comment process under the APA is of vital importance, and emblematic of the enduring importance of the right, or civic duty, to petition our government for a redress of grievances.
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 Civic Duty, Civic Engagement
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joseph M. Knippenberg Essay 13: Principle of Civic Duty, Civic Engagement – Guest Essayist: Joseph M. Knippenberg, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joseph KnippenbergIt is tempting to regard the American founding and the constitutional order it brought into being as relying almost exclusively on self-interest, or at best “enlightened self-interest.” We take for granted that, as James Madison observes in Federalist #51, human beings aren’t angels, and that our political order is so constructed, through institutional checks and balances, as to make ambition counteract ambition. We also find it easy to agree with Madison’s argument, in Federalist #10, that we are animated by the pursuit of our interests, which most frequently and reliably (but not exclusively) are defined in “selfish” economic terms:
Those who hold and those who are without property have ever formed distinct interests in society. Those who are creditors, and those who are debtors, fall under a like discrimination. A landed interest, a manufacturing interest, a mercantile interest, a moneyed interest, with many lesser interests, grow up of necessity in civilized nations, and divide them into different classes, actuated by different sentiments and views.
Viewed from this perspective, interest group politics might seem a sordid business, with emphasis on both its sordidness and its commercial character. Economists are comfortable disparaging most political action in terms of “rent-seeking,” i.e., using political power to redistribute the wealth generated by the market. Thus it’s not surprising that one commentator famously devoted an entire book to examining Why Americans Hate Politics.
But for a variety of reasons, this view is incomplete and short-sighted. To begin with, our founders certainly didn’t take the view that politics was venal, sordid, and basically selfish. After all, they pledged their lives, their fortunes, and their sacred honor to the task of establishing American independence, not a rational risk for someone out simply to maximize profit or utility. As John Adams wrote on April 26, 1777 to his wife Abigail, “Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it.” For Adams, freedom was not something to be cast away or consumed, but rather to be preserved for oneself and one’s posterity. It wasn’t understood merely as a condition of one’s immediate personal gratification, but as a cherished trust to be handed down from generation to generation.
We can look to the founding generation for examples of how to take this trust seriously. First, in the Northwest Ordinance, passed by Congress under the Articles of Confederation and then repassed by Congress under the United States Constitution, we read these words: “Religion, morality, and knowledge, being necessary to good government and the happiness of mankind, schools and the means of education shall forever be encouraged.” Schools don’t just train workers or create clever consumers; they are to engage in civic education, uniting morality (which as George Washington reminds us, is supported by religion) with knowledge for the sake of good government.
Second, in Federalist #10, immediately after describing the different interests that grow up in “civilized nations,” Madison says that the “regulation of these various and interfering interests forms the principal task of modern legislation.” This “regulation” should not consist in the dominance of one interest—majority or minority—over others, but should seek to attain “the permanent and aggregate interests of the community.” While, to be sure, “enlightened statesmen may not always be at the helm,” managing this conflict for the common good, those who represent the people should be acquainted with the diverse array of concerns and interests among their constituents. This can only happen if these representatives have the disposition to listen and the capacity to understand and if the people can engage in respectful conversation with one another and with their representatives. And then, to be effective, these representatives must be able to engage productively with their counterparts from across the country. It is entirely in line with these expectations that men like Benjamin Franklin, Benjamin Rush, Thomas Jefferson, James Madison, and George Washington cared deeply about the education of future generations. Our political leaders should not merely be wealthy and well-born (as the Anti-federalists feared), but rather selected for their excellence and held accountable by a vigilant and well-informed electorate.
Finally, some of the founders presciently anticipated an argument made in great detail by Alexis de Tocqueville in Democracy in America. Thomas Jefferson frequently promoted a plan of dividing Virginia into wards, modeled on the New England townships Tocqueville later celebrated. Each was to be responsible for local education and self-government. These “little republics,” as he put it in a letter to John Tyler (May 26, 1810), “would be the main strength of the great one.” While Jefferson’s plan was not formally instituted, Tocqueville found that its spirit permeated the young nation he visited:
Americans of all ages, all conditions, all minds constantly unite. Not only do they have commercial and industrial associations in which all take part, but they also have a thousand other kinds religious, moral, grave, futile, very general and very particular, immense and very small…. 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.
Arguments and examples could be multiplied from Tocqueville’s great book, some pertaining to participation in local politics, others to the creation of the variety of associations I just mentioned, but Tocqueville’s main point echoes that made by those long-time rivals and friends, Adams and Jefferson: engaging with one another is the republican and democratic substitute for and prophylactic against both aristocratic and governmental paternalism.
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Educating a Free People to Secure the Blessings of Liberty for Future Generations of Americans
90 in 90 2023, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 12: Educating a Free People to Secure the Blessings of Liberty for Future Generations of Americans – 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 StudiesThe New England Primer was an educational book, first published in the colonies in the 1690s. For over 100 years, it was used by parents to teach their children to read. Even more than that, the selections of readings – which included plays and poetry – in the primer were meant to give lessons that taught children the importance of morality and virtue. The book was especially popular in New England colonies, where Americans had been enjoying a large degree of political independence from Great Britain and personal freedom in their individual lives. The importance of civic virtue in a republic, as taught by the lessons in the primer, were described by several prominent New Englanders at the time of the American Founding.
Samuel Williams, a professor at Harvard College, wrote about the importance of education in The Natural and Civil History of Vermont in 1794. “Among the customs which are universal among the people, in all parts of the state,” Williams wrote, “one that seems worthy of remark, is, the attention that is paid to the education of children.”[1] Williams continued:
“The aim of the parent, is not so much to have his children acquainted with the liberal arts and sciences; but to have them all taught to read with ease and propriety; to write a plain and legible hand; and to have them acquainted with the rules of arithmetic, so far as shall be necessary to carry on any of the most common and necessary occupations of life.”
In addition to be useful in their daily lives, this education was also meant to shape them into being good citizens.
“All the children are trained up to this kind of knowledge: They are accustomed from their earliest years to read the Holy Scriptures, the periodical publications, newspapers, and political pamphlets; to form some general acquaintance with the laws of their country, the proceedings of the courts of justice, of the general assembly of the state, and of the Congress, &c. Such a kind of education is common and universal in every part of the state.”
This education produces “plain common good sense” as well as “virtue, utility, freedom, and public happiness,” all of which are especially important among citizens in a free society. This view of the purpose of education was also expressed by an anonymous author in a Boston essay titled The Worcester Speculator No. VI in 1787. “If America would flourish as a republic,” he wrote, “she need only attend to the education of her youth. Learning is the palladium of her rights—as this flourishes her greatness will increase.”[2] The author continued:
“[I]n a republican government, learning ought to be universally diffused. Here every citizen has an equal right of election to the chief offices of state. … [E]very one, whether in office or not, ought to become acquainted with the principles of
civil liberty, the constitution of his country, and the rights of mankind in general. Where learning prevails in a community, liberality of sentiment, and zeal for the public good, are the grand characteristics of the people.”
As proven by the effectiveness of The New England Primer, the Worcester Speculator especially emphasized the usefulness of literature for inculcating virtue and morality in students. “If we would maintain our dear bought rights inviolate,” he wrote, “let us diffuse the spirit of literature: Then will self-interest, the governing principle of a savage heart, expand and be transferred into patriotism: Then will each member of the community consider himself as belonging to one common family, whose happiness he will ever be zealous to promote.”
Benjamin Rush of Pennsylvania also wrote about the purpose of education in ways very similar to that of New England. In his A Plan for the Establishment of Public Schools and the Diffusion of Knowledge in Pennsylvania, Rush described the “influence and advantages of learning upon mankind.”[3]
I. It is friendly to religion, inasmuch as it assists in removing prejudice, superstition, and enthusiasm, in promoting just notions of the Deity, and in enlarging our knowledge of his works.
II. It is favorable to liberty. A free government can only exist in an equal diffusion of literature. Without learning, men become savages or barbarians, and where learning is confined to a fewpeople, we always find monarchy, aristocracy, and slavery.
III. It promotes just ideas of laws and government.
Rush was particularly concerned with the effect education – especially through the teaching of history – should have on the citizen in a free republic. “He must watch for the state as if its liberties depended upon his vigilance alone,” Rush wrote, “but he must do this in such a manner as not to defraud his creditors or neglect his family.” Rush continued:
“He must love private life, but he must decline no station, however public or responsible it may be, when called to it by the suffrages of his fellow citizens. … He must love character and have a due sense of injuries, but he must be taught to appeal only to the laws of the state, to defend the one and punish the other. He must love family honor, but he must be taught that neither the rank nor antiquity of his ancestors can command respect without personal merit. … He must be taught to love his fellow creatures in every part of the world, but he must cherish with a more intense and peculiar affection the citizens of Pennsylvania and of the United States.”
The lessons in morality and civic virtue these authors found most important in a free republic were promoted well by the fundamental education students received through The New England Primer well into the eighteenth century.
[1] Samuel Williams, The Natural and Civil History of Vermont, 1794, available at https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-2.
[2] The Worcester Speculator, No. VI, 1787, available at https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-1.
[3] Benjamin Rush, A Plan for the Establishment of Public Schools and the Diffusion of Knowledge in Pennsylvania, 1786, available at https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-1.
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Civic Virtue and a Free People: Principle of Educating on Ethical, Philosophical, Self-Evident Truths of Good Government
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 11: Civic Virtue and a Free People: Principle of Educating on Ethical, Philosophical, Self-Evident Truths of Good Government – 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. KnipprathThe direct and essential connection among education, civic virtue, and good republican government was a self-evident truth for many late-18th-century American political and religious leaders. There was far less agreement, however, as to what exactly constituted virtue, to what extent “the people” were capable of exercising civic virtue, and if one could count on virtue to restrain political leaders, either because the leaders themselves would possess a sufficient measure or because the people would use theirs to keep the leaders in check. During the debates in 1787 and 1788 over the adoption of the new federal constitution, civic, or public, virtue was a frequent topic of discussion. To opponents of the proposed government, it was axiomatic that, however virtuous the people might be, they would not be able to control corrupt factional leaders in a far-away central government. Supporters, in turn, scaled heights of flattering rhetoric to extol the strength of republican virtue among the American people.
Virtue might be the coin of the realm for good government in the minds of American republicans of the time, but there was no consensus about its proper alloy. To New Englanders, such as Adams, their Puritan heritage saw virtue in private frugality and sobriety, and public virtue in service and sacrifice for the common good. Moreover, public virtue necessarily arose from private virtue. “Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics,” John Adams wrote to the historian Mercy Otis Warren in April, 1776. Moreover, republican government was essential to “true Liberty.”
However, man, being fallen, lacked virtue by nature. Virtue had to be taught, but that was a difficult project. Education, though necessary, was not sufficient. Coercion must always be kept near at hand. As John Adams wrote to Thomas Jefferson in October, 1787, “I have long been settled in my own opinion that neither Philosophy, nor Religion, nor Morality, nor Wisdom, nor Interest, will ever govern nations or Parties, against their vanity, their Pride, their Resentment, or Revenge, or their Avarice, or Ambition. Nothing but Force and Power and Strength can restrain them.”
It should be noted that Adams, like many others of the founding generation of American republicans, distrusted pure democracy. In a letter in April, 1814, to the Southern agrarian philosopher John Taylor of Caroline, he wrote, echoing classical political thought,
There were limits to the degree to which all people could be trained to civic virtue, limits which inhered in man’s corruption through the passions and in the frailty of the human mind to control them.
For Southern agrarian republicans, private virtue, even if successfully inculcated in the people, could not guarantee civic virtue in the halls of government. Adams’s assertion, “Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics,” might well be true as far as it went. However, as John Taylor of Caroline wrote, “By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.” The New England solution of using the strong hand of an intrusive government to control private vices was unpalatable to the Southern agrarian class. Instead, they agreed with James Madison in The Federalist No. 51, that there was a “need for auxiliary precautions.”
Those auxiliary precautions included a structure of divided powers where “ambition must be made to counteract ambition.” Good republican government could be fostered by relying not on the public virtue of either political leaders or a civically militant people, but on embracing the reality of conniving and power-hungry politicians whose mutual jealousies would check each other. In similar manner, political factions, that bane of good republican government, being driven by self-interest, would jockey for influence in constantly changing coalitions. Among factions, none would become entrenched, as there were no permanent allies or enemies, only permanent interests, to borrow from Lord Palmerston’s policy description of 19th-century British international relations.
National republicans, such as Alexander Hamilton and George Washington, rejected a fundamental premise that underlay other conceptions of civic virtue. Rather than treat virtue and passions or self-interest as antithetical, and fusing public virtue to private virtue, national republicans simply redefined that relationship. Some private vices were rooted in self-interest, such as the desire for fame, honor, or even wealth, but they could be harnessed to produce great public benefit and, therefore, should be considered civic virtues. Government could create incentives for persons to engage in such “good” passions to produce great public benefit.
Nor were all members of the American elite without doubt about the scope of virtue among the American people or about their capacity to attain a sufficient measure of it. John Adams, as prolific a writer on the connection between virtue and good republican government as lived at the time, warned in a letter in June, 1776,
Whatever their differences about the meaning of virtue and about the capacity of private virtue to produce sufficient public virtue, the expositors of virtue politics generally agreed with Aristotle that education and training in private virtue were necessary to its practice. For most of them, only the broad distribution of land ownership rivaled virtue in promoting and protecting liberty and republican government. Thus, education to virtue was an essential task, even if the outcome was uncertain and incomplete. Education had to be grounded in religion and morality, as those were the sources of virtue. The Northwest Ordinance of 1787, perhaps the greatest peacetime achievement of the Confederation Congress, codified this premise:
President George Washington in his lengthy Farewell Address, published in September, 1796, gave a succinct rhetorical overview of the connection among religion, morality, virtue, and good republican government:
There was cause for optimism, as the American population had a high rate of literacy compared to that even of European countries. “Ours are the only farmers who can read Homer,” a self-satisfied Thomas Jefferson boasted in a letter to St. John de Crèvecoeur in January, 1787. Jefferson is well-known for his efforts in the founding of the University of Virginia in 1819, for the design of which he also developed architectural plans. His educational activism was not limited to creating a university. As early as 1785, in his Notes on the State of Virginia, Jefferson laid out a plan to educate younger children of both sexes for three years at public expense, with higher grades open to the boys of parents who could afford the tuition and to a limited number of other boys selected on the basis of their intellectual capabilities. In Jefferson’s somewhat indelicate language to modern ears, “By this means twenty of the best geniuses will be raked from the rubbish annually, and be instructed, at the public expence, so far as the grammar schools go.” His ambitious plan was not realized in any form in Virginia until after the Civil War.
Along with the general goals of imparting knowledge for its own sake and for practical pursuits, Jefferson saw education as a necessary process for republican government. Perhaps his best-known aphorism regarding the importance of education appeared in a letter he wrote to Colonel Charles Yancey in January, 1816, “If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.” The antidote to such a doomed expectation was education. “The qualifications for self government in society are not innate. They are the result of habit and long training,” Jefferson wrote to Edward Everett in March, 1824.
Other famous Americans echoed these sentiments. As supposedly worldly and skeptical as he was, Benjamin Franklin nevertheless advised, “A Bible and a newspaper in every house, a good school in every district—all studied and appreciated as they merit—are the principal support of virtue, morality, and civil liberty.” James Madison declared that the Constitution required “sufficient virtue among men for self-government.” Otherwise, “nothing less than the chains of despotism can restrain them from destroying and devouring one another.” The old Son of Liberty, Samuel Adams, opined in a letter to James Warren in 1779, “If Virtue & Knowledge are diffused among the People, they will never be enslav’d. This will be their great Security.”
None of the founding generation appear as convinced of the importance of education and religion to virtue and of virtue to liberty preserved through republican government as Samuel’s cousin John Adams. Despite his occasional doubts and pessimism, Adams was a staunch virtue republican. His writings are filled with quotable passages about the subject. A few will give the essence of his thoughts. Perhaps his best known, expressed in a letter in October, 1798, to officers in the Massachusetts militia, is “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” This sentiment, embraced the then-common belief that the American experiment in self-government, more than aristocratic or monarchic systems, relied on virtue widely diffused among the general population, or at least among those who would have the privilege to vote or to hold public office.
In the same letter in 1776 in which Adams expressed concern about the state of virtue among his fellow Americans, he also wrote,
To complete the causal chain, one may point to his 1765 Dissertation on the Canon and Feudal Law, where he asserted, “Liberty cannot be preserved without general knowledge among the people.”
These quotations are not merely a string of disjointed musings. The writers put practical efforts behind their firm and constant beliefs, beliefs shared by Americans generally. Jefferson’s contributions to education have already been noted. Adams was the principal drafter of the historically important Massachusetts Constitution of 1780. That charter declared that “the happiness of a people, and the good order and preservation of civil government, essentially depend upon piety, religion, and morality ….” Article V formally encouraged the development of publicly-funded primary and grammar (secondary) schools. To justify that effort, the section began, “WISDOM and knowledge, as well as virtue, diffused generally among the body of the people, [are] necessary for the preservation of their rights and liberties ….”
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Principle of Appropriate Role and Purpose of Government in Protecting Liberty of the Citizenry
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 10: Principle of Appropriate Role and Purpose of Government in Protecting Liberty of the Citizenry – 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 LangerSince the earliest days of the American founding, a bedrock principle of our republic has been the concept that government is an essential element in protecting and preserving individual rights. In the Declaration of Independence, principal author Thomas Jefferson wrote, “to secure… rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.”
Building on this precept, in Federalist 51, James Madison talked about the tension between the necessity of government in protecting individual rights, but the need for the governed to work to constrain the powers of government:
Our republic is built on a simple, yet powerful, concept: we are endowed by our creator with certain “unalienable” rights. We cede small measures of those rights to government in the form of powers, in order for the full-measure of our rights to be protected.
This leads to a fundamental axiom: whenever government is enlarged, individual rights are diminished. You cannot reconcile liberty with anti-liberty.
This gives us not only the basic structure of the federal constitution, but most state-based constitutions as well. The Articles of the United States Constitution lay out the powers of government—i.e., what measure of rights we have ceded to the government in the form of powers. The first eight amendments within the Bill of Rights represent further constraints on those powers in order to protect individual rights.
But then the last two amendments in the Bill of Rights, Amendments 9 and 10, make further declarations regarding the balancing of rights versus the powers of government.
The Ninth Amendment makes it clear that the rights of citizens aren’t limited to what is “enumerated” in the Bill of Rights, that their rights are essentially infinite, while the Tenth Amendment underscores this idea that the powers of government are created by the people giving up some measure of their rights—and anything not “delegated” to government is “reserved” by the people.
Further, while a New Deal-era Supreme Court dismissed limitations on federal power in cases like US v. Darby, even that court had to admit that when it comes to the Tenth Amendment, it states, “a truism that all is retained which has not been surrendered.” US v. Darby, 312 US 100, 124 (1941)
This tension underscores the fundamental beauty of our system—we are not a pure democracy (something our founders were rightly skeptical of). As the saying goes, “democracy is two wolves and a sheep deciding what to have for supper.”
We recognize that while the people can vote to make particular laws, those laws can only exist within the powers the people have delegated to government and they cannot be violative of the rights retained by the people. So while one group of people, even a majority of the people, might demand that government impose restrictions on certain kinds of unpopular speech, the First Amendment makes it clear that such restrictions would be unconstitutional (and one can say that the entire purpose of the First Amendment is to protect “unpopular” speech. “Popular” speech requires no such protection!).
How, then, do we assess this balance between the rights of people and the powers of government?
It starts with a basic inquiry. All “just” law is born out of the intersection of the exercise of individual rights. One’s right to wave their hands around in a wild interpretative dance (the right to free expression) is limited the moment those hands cross the bridge of someone else’s nose, and violate their right to be secure in their person, free from harm. And when those rights come into conflict, it is the party that is more-aggrieved that the law is supposed to protect (and the law is supposed be more weighted on behalf of those less-able to advocate for themselves).
This presents our society with the need for “balancing tests” to determine where that line ought to be drawn: how is the right to free speech balanced against someone’s right to now be lied about (a harm to their reputation)? Or how is someone’s right not to be harmed by government’s force balanced against the rights of people in a community to not be harmed by that person’s violent actions?
When the public, either through legislation or via the courts, calls for a new law, a new balancing test, the Supreme Court has made it clear that such laws, such decisions, need to be made in a way to be the “least restrictive” way of achieving the government’s goals. This way the rights of the individual are still protected to the maximum extent possible.
While there remains considerable debate as to whether such balancing tests are a good thing, or whether there is harm in the long run from a series of ad hoc inquiries into that balance, in the end it is important to remember that the Constitution sets out essential bedrock principles in that regard. All that is not surrendered is retained, and we should remain vigilant each and every time we look to enlarge the power of government.
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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Keeping a Free People Securely Bound Together Through the Principle of Natural Law Opposition to Tyranny
90 in 90 2023, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 9: Keeping a Free People Securely Bound Together Through the Principle of Natural Law Opposition to Tyranny – 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 StudiesAugust 1, 1776, Samuel Adams said in his Speech on American Independence,
These words of Samuel Adams justifying the pursuit of American independence represent a view among patriots in Boston that rejected hereditary monarchy in favor of representative or republican government. Adams founded his arguments upon a belief that the legitimate purposes and limitations of civil government could be discerned from an understanding of the laws of nature and natural rights. This view of government, however, had been developing and spreading in the public mind – especially in Boston – for well over a decade prior to the Declaration of Independence.
Bostonians heard these arguments with growing frequency in sermons at their places of worship after the British began to impose oppressive taxes and regulations in the 1760s. Abraham Williams, for example, a Congregationalist pastor in Sandwich, Massachusetts, incorporated a teaching on the laws of nature in his Election Sermon in 1762.[1] Mankind needs government, Williams preached, in order to secure the blessings that God has bestowed upon them. “[W]hen Men enter into civil Societies, and agree upon rational Forms of Government,” Williams said, “they act right, conformable to the Will of God, by the Concurrence of whose Providence, Rulers are appointed…The End and Design of civil Society and Government, from this View of its Origin, must be to secure the Rights and Properties of its Members, and promote their Welfare.” Williams taught that rulers, therefore, must do good, not harm to their subjects. “ In all Governments, Magistrates are God’s Ministers, designed for Good to the People. The End of their Institution, is to be Instruments of Divine Providence, to secure and promote the Happiness of Society.”
The truth of this view, Williams argued, was conclusively demonstrated by the laws of nature. “The Law of Nature (or, those Rules of Behaviour, which the Nature God has given Men, the Relations they bear to one another, and the Circumstances they are placed in, render fit and necessary to the Welfare of Mankind),” Williams continued, “is the Law and Will of the God of Nature, which all Men are obliged to obey.”
Pastor John Tucker of Newbury, Massachusetts, continued to build on this argument in an election sermon in 1771, adding that according to the Laws of Nature, governors rule by the consent of the people. “All men are naturally in a state of freedom,” said Tucker, “and have an equal claim to liberty. No one, by nature, nor by any special grant from the great Lord of all, has any authority over another. All right therefore in any to rule over others, must originate from those they rule over, and be granted by them.” The idea of rule by consent through a social compact also implied that are just limits to what government may do, and also obligations that government must perform.
In his 1776 sermon titled “On the Right to Rebel against Governors” – another election day sermon in Boston – Samuel West argued that, according to the Laws of Nature, rulers who act contrary to God’s will that the rights of the people be secured from harm may be – and in fact should be – justly resisted and opposed by citizens. “[T]yranny and arbitrary power are utterly inconsistent with and subversive of the very end and design of civil government,” West preached, “and directly contrary to natural law, which is the true foundation of civil government and all politic law. West continued:
West’s argument that rulers who act without consent and contrary to the good of society are illegitimate aligns with many of the same arguments Samuel Adams made in his speech on independence. Adams’ message was widely agreed to in part because it was an argument Bostonians had been hearing and working toward putting into practice for well over a decade. It was a view that would be carried beyond Massachusetts as Americans in other states fought to win an then maintain American independence from British rule.
[1] This and the following sermons are available from https://oll.libertyfund.org/title/lutz-american-political-writing-during-the-founding-era-1760-1805-vol-1.
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Principle of Constitutional Restraints To Prevent the Undermining of Interests of the Entire Union
90 in 90 2023, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 8: Principle of Constitutional Restraints To Prevent the Undermining of Interests of the Entire Union – 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
One of the purposes of the Constitution of the United States, according to its Preamble, is “to form a more perfect Union.” It was a long road, however, for that Union to be more perfectly established as under the Constitution in 1787. Before the Constitution, the thirteen original states had agreed to a “firm league of friendship” through a compact known as the “articles of Confederation and perpetual Union.”
In July of 1776, the thirteen states engaged in an act of unity by unanimously declaring themselves “free and independent states” no longer under the political authority of Great Britain. Prior to that, in 1774, the thirteen American colonies took the first official steps toward becoming a formal Union through the Articles of Association, which established the Continental Congress and put them on the path to independence.
The pace at which the states moved from being colonies under the authority of the British Crown, to “free and independent states,” and then to the United States of America seemed to quicken and intensify under the pressure of events during the American Revolution and Revolutionary War. But for decades prior, many Americans had been attempting to establish a formal union between the British Colonies in America, primarily for purposes of mutual defense and the protection of British economic interests among the American colonies. These early efforts ultimately made it possible for the states to formally unite as the United States of America. It was not an easy road, however, as many colonies saw their habits, manners, and economic interests as quite different from those of the other colonies. Pulling these vastly different peoples together as one would be a long, arduous task.
One man who made great strides in uniting the colonies for purposes of mutual defense was Benjamin Franklin. In his Autobiography, Franklin writes of a plan of Union he had proposed in 1754. Anticipating an approaching war with France (which did eventually become the French and Indian War of 1754-1763), the British authorized a congress of commissioners from the colonies to convene in Albany, New York to discuss defensive preparations. Franklin took the opportunity to draw up a more extensive plan by which the colonial defenses would be administered by a general government of the Union.
Ultimately Franklin’s plan was rejected by the colonial assemblies, because under it the British retained too much political authority over the colonies, and by the British, because it seemed to grant too much independence and self-government to the colonies. Later, in 1788, Franklin would write,
Despite the failure of Franklin’s Albany Plan of Union in 1754, it had an important impact on the public mind of American colonials. Franklin, as a well-known and highly respected public figure, was now identified as the leading advocate of colonial unity, inspiring others to consider the possibility of formal union in the future. Furthermore, to promote the Albany Plan, Franklin introduced one of the most important symbols of the American Revolutionary period in his famous “Join, or Die” slogan under the image of a snake cut into thirteen pieces.
Franklin designed the image and published it in his widely read newspaper The Pennsylvania Gazette on May 9, 1754. Almost two decades later, as the Acts of the British Parliament became more unjust and oppressive in the eyes of American colonists in the 1770s, Franklin’s “Join, or Die” image was revived and inspired many people to join with the patriots, thus making possible the Union that eventually emerged from the American Revolution.
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Republic or Democracy? Classical History, Republican Governing as Adopted by the United States, and the American Revolutionary War
90 in 90 2023, Jay McConville, 6. Guest Constitutional Scholar Essayists, Blog Essay 7: Republic or Democracy? Classical History, Republican Governing as Adopted by the United States, and the American Revolutionary War – Guest Essayist: Jay McConville, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Jay McConville, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesRepublic or Democracy?
A distinction with a difference to the American Revolution.
People often use the term “democracy” when referring to the United States. The distinction between a republic, which is technically what we are, and a democracy seems lost on those who intermingle the terms as if they were synonyms. If you note that we are not a democracy, but a republic, you risk being mocked as strict constructionists overly wedded to technical definitions and unwilling to acknowledge the importance of popular sovereignty and the will of the people in our system.
This is unfortunate, as the question of whether we are a democracy or a republic is an important one, complex, and reliant on clear definitions of words and their use. Strictly speaking, the United States is a representative Republic, not a democracy. The distinction has a difference. It greatly influenced the American Revolution, and arguably saved the future Republic from ruin in its darkest days.
First, some definitions. Merriam-Webster (MW) defines democracy, a noun, as “a government by the people” characterized by “rule of the majority,” and as “a government in which the supreme power is vested in the people and exercised by them directly or indirectly through a system of representation usually involving periodically held free elections.”[1] This, of course, does a pretty good job of describing what most of us believe our government is. We the People are sovereign, and we exercise that power through elections. So far so good.
As for “republic” the definition is similar, but with several important additional elements. Republic is also a noun, meaning (according to MW), “a government having a chief of state who is not a monarch and who in modern times is usually a president,” and “a government in which supreme power resides in a body of citizens entitled to vote and is exercised by elected officers and representatives responsible to them and governing according to law.”[2]
From these definitions it is clear why there might be some confusion. A representative republic uses “democratic means” to manifest the consent of the governed. We vote for representatives, who vote on measures. Voting is democracy in action, but that does not make the United States a democracy. The measures that our representatives vote on are constrained by law and the Constitution. We do not have pure democracy or “rule by the majority” because we have constitutionally protected rights that cannot be voted away, operate under rule of law, and have, till recently, limited government with limited powers. We also have, however, an expanded voting population that is not limited by aristocracy, wealth, property ownership, or gender. Any citizen, over 18 years of age, can vote. One could say, therefore, that the United States is a democratic representative Republic.
While some might wish to believe so, the founders did not invent the concept of consent of the governed, nor was America the first democracy or republic. Discussion of such concepts had been going on for centuries and republics existed prior to the American Revolution. What the American founders did do was expand the definition of a republic so that it gave more power to the popular will of the people. They were merging, more completely, the idea of a law-based government with the concept of consent of the governed. While in retrospect we see their efforts as woefully incomplete, for the time it was a revolutionary step towards popular sovereignty. Many doubted such an expansion of representation could work over such a large population or territory.
The original text of the United States Constitution never mentions the word democracy, and only mentions republic as a form of government once in Article IV, Section 4 (“The United States shall guarantee to every State in this Union a Republican Form of Government…”). Interestingly, that clause refers to the states, and not the federal government itself. Throughout the text the founders refer to the United States as the “union” or as the “United States” but never a republic or a democracy. The Declaration of Independence does not use either term at all.
That said, the structure laid down in the Constitution contains the elements that MW described, including a “chief of state,” and that power lies with a body of “elected officers and representatives” who vote on the laws that govern the nation. All these officials govern according to law.
That is a Republic, no doubt.
When asked by “Mrs. Powel” upon the passage of the Constitution in 1787 what we had created, Benjamin Franklin famously replied, “a Republic, if you can keep it.”[3]
It is in the phrase “if you can keep it,” however, where we find the true impact of the distinction between republic and democracy. As Richard R. Beeman, Ph.D. writes “we find ample evidence that democratic revolutions do not inevitably lead to national harmony.…We see that the expression of the ‘popular will’ can create a cacophony of discordant voices…In far too many places around the world today, the expression of the ‘popular will’ is nothing more than the unleashing of primordial forces of tribal and religious identity which further confound the goal of building stable and consensual governments.”[4]
What Franklin was concerned about, what he was so prescient about, was the difficulty in preserving the union. That concern was not an idle one, as the Revolution had proven. To keep the union together required a structure that limited conflict and cooled the passions of the mob yet provided ample enough rights and liberties to both the citizen and the to the former colonies to make them support and adhere to the union. Again, quoting Beeman, “the question that has plagued all nations aspiring to democratic government ever since: how to implement principles of popular majority rule while at the same time preserving stable governments that protect the rights and liberties of all citizens.”
In 1776 a stable union did not exist. What did exist was a loose confederation of militia forces and citizens from the thirteen colonies, operating under an ill-defined structure to which their commitment continually wavered. Support for the revolution was not, by any means, universal within these colonies, and the debate between revolution and compromise with Britain raged. To preserve the effort, the founders knew they had to promise both protections from mob rule and protections for popular sovereignty. That was not a trivial endeavor.
Alexander Hamilton wrote of the challenge in a letter to John Jay in November 1775. In that letter he addressed the “passions of men” which provided for a “great danger of fatal extremes.” Hamilton wrote:
When the minds of these are loosened from their attachment to ancient establishments and courses, they seem to grow giddy and are apt more or less to run into anarchy…. In such tempestuous times, it requires the greatest skill in the political pilots to keep men steady and within proper bounds…[5]
Hamilton was concerned about conflict between New York and New England, which threatened a united stance vis-à-vis England. To control intra-colonial conflict, he argued against too much popular sovereignty, i.e., too much democracy. He recognized the need to hold the passions of men at bay, and the skill needed to do that while continuing to keep the support of the colonies.
As the American Revolutionary War against Britain intensified, George Washington was plagued by irregular support from both the colonies and the Continental Congress. His ability to avoid catastrophic defeat is legendary. What perhaps was his greater brilliance was the ability to hold the forces together, keep the states from fighting each other, and channeling the passions of his fighting forces away from each other and towards the enemy. As his letter to the colonies from Valley Forge attests, the distributed nature of the revolutionary coalition put the future of the war in great jeopardy. “In a word, the United and respective exertions of the States cannot be too great, too vigorous in this interesting work, and we shall never have a fair and just prospect for success till our Troops (Officers & Men) are better appointed and provided than they are or have been.”[6]
Washington knew very well that a citizen force of volunteer militiamen, responding only to popular will, while appealing to the revolutionary impulse, was no substitute for a centrally commanded, resourced, trained, and managed force of professional soldiers. Once launched, support to the war had to be controlled by a chief executive and protected by a Congress of representatives whose laws mattered and lasted. Counter to popular legend, it was not the minutemen who won the war. Washington could never have achieved victory had he remained subject to the democratic vagaries of thirteen colonial assemblies guided only by majority rule. “Military necessity required American leaders to change their perceptions of standing armies and challenged their republican ideals of volunteer, part-time military service…ultimately it was the Continental soldiers that would secure victory…”[7]
That the colonies agreed to the creation of the Continental Army is a critical component of the success of the revolution. It is also remarkable given the antipathy they held against standing armies. James Madison, years later during the debates over the Constitution, exposed that antipathy, stating that a “standing military force, with an overgrown Executive will not long be safe companions to liberty,” and that the “means of defense against foreign danger, have been always the instruments of tyranny at home…. armies kept up under the pretext of defending, have enslaved the people.”[8] Yet, despite that view, such a force was authorized by the fledgling republic, saving the effort and leading to victory.
Today, when a riot or mass protest occurs, people in the crowd can often be heard chanting, “this is what democracy looks like.” In a way they are correct, which is why we are a representative Republic.
John Adams famously wrote, in a letter to John Taylor in 1814, “…Democracy never lasts long. It soon wastes, exhausts and murders itself. There never was a Democracy Yet, that did not commit suicide.” In that same letter, he wrote, “the Athenians grew more and more Warlike in proportion as the Commonwealth became more democratic.”[9] The founders, students of history and great thinkers including those of ancient and classical history, knew the distinction. That they did, saved the new nation.
Our founding was saved by the skill of our “political pilots” to craft a compromise between popular will and the rule of law. We are democratic, but we are not a democracy. We the People are those whose consent is required, but the Constitution is the Supreme Law of the Land.
We would have never made it otherwise.
[1] https://www.merriam-webster.com/dictionary/democracy
[2] https://www.merriam-webster.com/dictionary/republic
[3] Mrs. Powel was not just a random woman on the street. She was an influential and important member of society, close in association with George Washington. Read more of her interesting story here: https://www.mountvernon.org/library/digitalhistory/digital-encyclopedia/article/elizabeth-willing-powel/
[4] https://constitutioncenter.org/education/classroom-resource-library/classroom/perspectives-on-the-constitution-a-republic-if-you-can-keep-it
[5] https://founders.archives.gov/documents/Jay/01-01-02-0099
[6] https://www.gilderlehrman.org/sites/default/files/inline-pdfs/t-03706.pdf
[7] https://www.battlefields.org/learn/articles/militia-minutemen-and-continentals-american-military-force-american-revolution
[8] https://teachinghistory.org/history-content/ask-a-historian/24671
[9] https://founders.archives.gov/documents/Adams/99-02-02-6371
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Classical History and Governing Devoted to Freedom and Independence Through Restraining Power of Elected Representatives
90 in 90 2023, Winfield H. Rose, 6. Guest Constitutional Scholar Essayists, Blog Essay 6: Classical History and Governing Devoted to Freedom and Independence Through Restraining Power of Elected Representatives – Guest Essayist: Winfield Rose, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Winfield H. Rose, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesOther impacts of the Protestant Reformation derive directly from the teachings of John Calvin (1509-1564), a Frenchman by birth who spent most of his life in Geneva, Switzerland. The distinguishing characteristic of Calvinist Protestantism, as presented in his Institutes of the Christian Religion (1535), is the doctrine of predestination, meaning that God has predestined or foreordained some people (called the “elect”) for salvation and others for damnation. This is part of eternal law and, as such, there is nothing anyone can do about it. It is an unchangeable decision made by God, not a matter of the potential believer’s free will. Knowing if one is among the elect is a problem, however. The psychological insecurity this caused was severe.
The German sociologist Max Weber (1864-1920) published The Protestant Ethic and the Spirit of Capitalism in 1905. Written as a response to Karl Marx’s theory of economic determinism, Weber wanted to show that history could have a prime mover other than economics, namely religion, and argued that Calvinists searched for certainty of salvation in a God-given calling (a job or career), unceasing hard work, and the suppression of physical pleasure. In other words, one could know one was among the elect by working hard and saving and investing rather than spending one’s money and enjoying one’s self. This has come to be known as the Protestant or Puritan work ethic.
The argument continues that the Puritans brought this work ethic with them to North America and that it permeated the entire culture.[i]
Prof. Davis calls the Protestant or Puritan ethic “the beginning of the American dream,” saying
Puritans on both sides of the Atlantic embraced the ideas of the covenant or social contract (government based on consent of the governed), natural rights, and resistance to unjust authority (which itself was a natural right). Before they disembarked from the Mayflower in 1620 the Pilgrims wrote and signed the Mayflower Compact, thereby creating the first written social contract in history. It was first published in London in 1622 and reads as follows in modern English:
“In the name of God, Amen. We, whose names are underwritten, the Loyal Subjects of our dread Sovereign Lord, King James, by the Grace of God, of England, France and Ireland, King, Defender of the Faith, e&.
Having undertaken for the Glory of God, and Advancement of the Christian Faith, and the Honour of our King and Country, a voyage to plant the first colony in the northern parts of Virginia; do by these presents, solemnly and mutually in the Presence of God and one of another, covenant and combine ourselves together into a civil Body Politick, for our better Ordering and Preservation, and Furtherance of the Ends aforesaid; And by Virtue hereof to enact, constitute, and frame, such just and equal Laws, Ordinances, Acts, Constitutions and Offices, from time to time, as shall be thought most meet and convenient for the General good of the Colony; unto which we promise all due submission and obedience.
In Witness whereof we have hereunto subscribed our names at Cape Cod the eleventh of November, in the Reign of our Sovereign Lord, King James of England, France and Ireland, the eighteenth, and of Scotland the fifty-fourth. Anno Domini, 1620.”
Twenty-one years later our Puritan forefathers saw the need for a delineation of rights and adopted the Massachusetts Body of Liberties in 1641. This “was the first attempt in the colonies to restrain the power of the elected representatives by appealing to a fundamental document that lists the rights and duties of the people. The document . . . combined the early American covenanting tradition of the Mayflower Compact with an appeal to the common law tradition that crossed the Atlantic from Britain. The Massachusetts Body of Liberties contains ninety-eight sections. . . The most enduring part . . . is the preamble and the first seventeen sections . . .” The preamble reads as follows:
The free fruition of such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement hath ever been and ever will be the tranquility and stability of churches and commonwealths. And the denial or deprival thereof, the disturbance if not the ruin of both.
We hold it therefore our duty and safety whilst we are about the further establishing of this government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent.
We do therefore this day religiously and unanimously decree and confirm these following rights, liberties and privileges concerning our churches, and civil state to be respectively impartially and inviolably enjoyed and observed throughout our jurisdiction forever.
Space limitations preclude including the 17 sections here but they can be accessed at https://teachingamericanhistory.org/document/the-massachusetts-body-of-liberties/.
It is interesting to see how these ideas made their way back across the Atlantic to England. In 1644 a Scottish Presbyterian by the name of Samuel Rutherford published a book in London titled Lex Rex which contained all these ideas. The Puritan Revolution or English Civil War led by Cromwell lasted from 1640 to 1649 and gave birth to Thomas Hobbes’ Leviathan, first published in 1651, which was based on the natural right to life and created a powerful state whose legitimacy derived from the consent of the governed to protect it.
This was followed by John Locke’s Two Treatises of Government which were published in 1689 at the time of the Glorious Revolution and the English Bill of Rights. Locke proposed that government emerges from the consent of the governed to protect the natural rights of life, liberty and property.
These ideas were picked up by the authors and signers of the Declaration of Independence in 1776.
“The American Revolution might thus be said to have started, in a sense, when Martin Luther nailed his 95 theses to the church door in Wittenberg. It received a substantial part of its theological and philosophical underpinnings from John Calvin’s Institutes of the Christian Religion and much of its social theory from the Puritan Revolution of 1640-1660, and, perhaps less obviously, from the Glorious Revolution of 1689. Put another way, the American Revolution is inconceivable in the absence of the context of ideas which have constituted Christianity. The leaders of the Revolution in every colony were imbued with the precepts of the Reformed faith.[iii]
[i] Sanford Kessler, “Tocqueville’s: Christianity and the American Founding.” The Journal of Politics, v. 54 #3, August 1992, pp. 776-792.
[ii] Sue Davis, American Political Thought: Four Hundred Years of Ideas and Ideologies. Prentice Hall, 1996, p. 22. Emphasis added.
[iii] Page Smith, quoted in Amos and Gardiner, p. 3. Emphasis added.
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Principle of Applying Lessons from Classical History Toward New Governing Devoted to Freedom and Independence
90 in 90 2023, Winfield H. Rose, 6. Guest Constitutional Scholar Essayists, Blog Essay 5: Principle of Applying Lessons from Classical History toward New Governing Devoted to Freedom and Independence – Guest Essayist: Winfield Rose, 2023 - First Principles of the American Founding, 13. First Principles of the American Founding, Winfield H. Rose, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesChristianity in the Roman Empire was first persecuted, then tolerated, and later adopted as the official religion. The latter development was to the long-term detriment of the faith because, as the Church adopted the structures and procedures of Roman imperial government, it became ever more corrupt, as had the Roman government itself during previous centuries.
The details of this process are beyond the scope of this essay, but suffice it to say at this point that by 1517 a young German monk by the name of Martin Luther (1483-1546) decided change was needed. He, therefore, wrote and tacked his 95 theses on the church door in Wittenburg and launched what came to be the Protestant Reformation, thereby fracturing western Christianity forever.
Professor Sue Davis correctly described this momentous event as follows: “When Martin Luther . . . posted his ninety-five theses on the door of the castle church at Wittenberg in 1517 he initiated a revolution in politics as well as religion.”[i]
The relevance of the Reformation to the American political system can be understood as follows. First, the Reformation divided a Europe that had followed one central faith for centuries into more than two distinct groups in that there was not one Protestant church/faith/denomination but four, to be followed by more later. These four were the Lutherans, the Calvinists, the Anabaptists and the Anglicans in England.
These four groups not only differed from Catholicism, they differed from each other. It was, therefore, unfortunately inevitable that conflict would break out between them. On the continent this took the form of the Thirty Years’ War (1618-1648) between German Catholics and Lutherans. There were religious civil wars in France between Catholics and Huguenots (French Calvinists). In England it was the Puritan Revolution/English Civil War, 1640-1649, between Anglicans and those called Puritans who wanted to reform the Church of England along Calvinist lines. This resulted in the regicide of King Charles I and the establishment of the Protectorate of Oliver Cromwell in 1649.
These wars had two significant impacts on what was to become the United States. First, many Europeans tired of the seemingly endless slaughter and religious persecution and desired to escape, thereby emigrating to North America and populating the English colonies.[ii]
Second, after flirting with bringing their sectarian conflicts with them, our forefathers decided to do otherwise, ultimately making religious freedom a part of the United States Constitution in its First Amendment. The American tradition of separation of church and state can be traced directly back to the conflicts spawned by the Protestant Reformation.
In addition, the Protestant Reformation forced a fundamental change in political philosophy. The Magna Carta and Aquinas’ Treatise on Law were minor tremors but the Reformation was a major earthquake in that it articulated a right of resistance to unjust authority.
Romans 13 had been the basis of governmental authority in both the church and state for centuries. Remember that Jamestown had been founded in 1607 and Plymouth in 1620, and that the King James translation of the Bible was published in 1611. The first seven verses of Romans 13 in that translation read as follows:
1 Let every soul be subject unto the higher powers. For there is no power but of God: the powers that be are ordained of God.
2 Whosoever therefore resisteth the power, resisteth the ordinance of God: and they that resist shall receive to themselves damnation.
3 For rulers are not a terror to good works, but to the evil. Wilt thou then not be afraid of the power? do that which is good, and thou shalt have praise of the same:
4 For he is the minister of God to thee for good. But if thou do that which is evil, be afraid; for he beareth not the sword in vain: for he is the minister of God, a revenger to execute wrath upon him that doeth evil.
5 Wherefore ye must needs be subject, not only for wrath, but also for conscience sake.
6 For for this cause pay ye tribute also: for they are God’s ministers, attending continually upon this very thing.
7 Render therefore to all their dues: tribute to whom tribute is due; custom to whom custom; fear to whom fear; honour to whom honour.
These powerful words formed the basis of the divine right of kings theory and, in part, the basis of the Pope’s authority in the Church. How could Luther resist the Pope and Church without disobeying Romans 13? He could do so when obeying a higher authority (God) required him to.
According to Luther, it is a sin to obey any authority that forces or tries to force people to do that which is ungodly, unjust, unrighteous, unlawful or, in other words, wrong. A Godly person simply cannot do such things without sinning. As Luther said, “Hier stehe ich; ich kann nicht anders.”
About 150 years later this became “Resistance to tyrants is obedience to God.” The British government was violating God’s law and the Americans had not only the right but the duty to resist. And they did.
[i] Sue Davis, American Political Thought: Four Hundred Years of Ideas and Ideologies. Prentice Hall, 1996, p. 10.
[ii] I acknowledge that some came to the New World for personal and economic reasons rather than for religious and political reasons.
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History, Order and Tradition in the Formation of America’s Founding Documents
90 in 90 2023, Ron Meier, 6. Guest Constitutional Scholar Essayists, Blog Essay 4: History, Order and Tradition in the Formation of America’s Founding Documents – 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 StudiesDriving through Connecticut, you’ll see license plates with the words “Constitution State” inscribed at the bottom of the plate. But wait! Wasn’t the Constitution drafted in Pennsylvania, known as the Keystone State? And wasn’t Delaware, known as the First State, the first state to ratify the Constitution? So why is Connecticut called the Constitution State?
Connecticut did play an important role in the drafting of the United States Constitution, proposing the Connecticut Compromise, also known as the Great Compromise, breaking the impasse created by delegates who favored proportional representation by population and opposed by delegates who favored equal representation by state. Certainly a justifiable reason for Connecticut to call itself the Constitution State, for without that important compromise, a Constitution may never have been agreed upon by delegates from both large and small states.
However, that was not the reason for the adoption of the motto “Constitution State.” John Fiske, a historian born in Hartford in 1842, stated that the Fundamental Orders of 1639, a social compact created among three towns in what later became the colony of Connecticut, was the first Constitution created in the United States. The preamble to the document states that, to “maintain the peace and union of such a people, an orderly and decent Government should be established according to God.”
Ordered liberty, defined as “freedom limited by the need for order in society,” is a concept well known by our Founding Fathers. The roots of ordered liberty can be traced back thousands of years. Religious liberty was the motivation for the Pilgrims who landed at Plymouth Rock in 1620; all of them knew their Biblical history of freedom, anarchy, enslavement, totalitarianism, secession, and rejection.
Among other Biblical examples, they may have considered the Book of Nehemiah. After the fall of Judah in 586 BC, the Israelites were exiled to Babylon. Beginning in 538 BC, groups of Israelites began returning to Jerusalem, which had been destroyed. Over the subsequent 100 years, the city had no effective government, no militia, and the protective walls of the city lay in ruins. In 432 BC, Nehemiah, an Israelite serving the Persian King in Babylon as Cupbearer, had become frustrated hearing from Israelites of the conditions in Jerusalem and received permission from the King to lead a group to Jerusalem to restore order. He had no expertise in construction management, the politics of government, or military tactics, yet, he quickly took command after arriving in Jerusalem and led the citizens to complete the wall of the city, to organize a formal government, and to organize a militia to defend the city.
Recognizing the need for ordered liberty in their new settlement, the Pilgrims, before landing at Plymouth Rock, drafted a compact for the new village they were about to create near current-day Boston; that document, the Mayflower Compact, reflected the Pilgrims’ commitment to God and to the English King.
Soon thereafter, the Massachusetts Bay Colony was chartered by King Charles I in 1629. In 1630, an English lawyer, Roger Ludlow, arrived in Massachusetts and settled in Dorchester. He quickly became involved in Massachusetts political life and helped draft laws of the Massachusetts Bay Colony. However, after only five years in Dorchester, he and other Pilgrims, dissatisfied with religious conflicts in Massachusetts, left Massachusetts to establish a new religious community in what later became the Connecticut Colony. Ludlow settled in Windsor and others settled in the villages of Wethersfield and Hartford, all very close to each other. The three villages were self-governing, but had to unite to fight the Pequot Indians.
Recognizing the need to unite more formally, the three towns, led by Ludlow’s legal expertise, drafted the Fundamental Orders, a formal compact to establish the principles for an orderly confederation-style of government for the three towns. In a sermon that encouraged Ludlow to create the text of the Fundamental Orders, the Rev. Thomas Hooker, a founder of Hartford, dynamic preacher, and inspiration for the Fundamental Orders, said that “The foundation of authority is laid in the free consent of the people. As God has given us liberty let us take it.” Hooker is considered by some to be the father of American democracy. His statement regarding the free consent of the people may have been the first expression in the colonies of a key principle that, more than 100 years later, would find its way into our nation’s founding documents.
Unlike many social compacts at the time, the Connecticut document recognized no allegiance on the part of the colonists to England, but in effect set up an independent government. The Fundamental Orders were intended to be a framework of government more permanent than a compact, and in essence, a constitution. Simeon E. Baldwin, a former Chief Justice of the Connecticut Supreme Court, defended Fiske’s view that the Fundamental Orders of 1639 was the first Constitution created in the United States by stating that
“never had a company of men deliberately met to frame a social compact for immediate use, constituting a new and independent commonwealth, with definite officers, executive and legislative, and prescribed rules and modes of government, until the first planters of Connecticut came together for their great work on January 14th, 1638-9.”
Whereas the Mayflower Compact was designed for a single community, the Fundamental Orders was designed for three communities, further evidence that it was a Constitution, much like the later United States Constitution designed to bring unity among 13 colonies. Also, some features of the Fundamental Orders prefigured the United States Constitution, even if not in exact form. The Orders provided for yearly elections conducted in accordance with Direct Democracy format, appropriate for smaller communities. An annual election was held, during which a Governor and six Magistrates were elected to serve a one-year term of office. Each town also elected two Representatives to a unicameral legislature which met each September in a legislative session. This prefigured the Representative Democracy to be devised in 1787, although the latter resulted in a bicameral legislature. Freemen had a right of petition; and a method was devised to tax each town to raise funds as required for administration of the government. Liberty of speech was emphasized in the Orders and “unseasonable and disorderly speakings” were discouraged. The office of the Secretary of State was officially established in the Fundamental Orders of 1639 and has continued to exist since that time, the oldest Office of the Secretary of State in the United States.
It wasn’t until 100 years later that the Connecticut legislature acted upon Fiske’s opinion about the Fundamental Orders being the first Constitution created in the United States. In 1959, the legislature officially designated Connecticut’s nickname to be The Constitution State. In anticipation of the upcoming bicentennial of the founding of the United States, in 1973 the Connecticut legislature mandated that Connecticut’s license plates should display the state slogan the assembly had adopted 14 years earlier.
Interestingly, Roger Ludlow, the primary architect of the Connecticut Fundamental Orders, grew weary of the challenges of colonial life, and returned to England in 1654, where he died and is buried.
Sources:
Neh 1-Neh 7 NABRE – I. The Deeds of Nehemiah Chapter 1 – Bible Gateway
Microsoft Word – DocsOfCTGov.doc
Register and manual – State of Connecticut : Free Download, Borrow, and Streaming : Internet Archive
Roger Ludlow – Wikipedia
Are We the Constitution State? – Connecticut Explored (ctexplored.org)
Why is Connecticut Called the Constitution State? (unitedstatesnow.org)
History of Connecticut – Wikipedia
Windsor, Connecticut – Wikipedia
Mayflower Compact – Wikipedia
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Essentially Bound: The Principle of Regard for History, Order, and Tradition
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 3: Essentially Bound: The Principle of Regard for History, Order, and Tradition – 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. KnipprathIn The Federalist No. 6, Alexander Hamilton sought to refute the claim that commercial republics, such as the thirteen original united states, do not go to war with each other, and that, therefore, there was no threat of eventual disunion to be feared from the looser structure of the Articles of Confederation. He cited numerous historical examples, from ancient Greece to more modern times, to challenge that comforting assertion. Hamilton urged, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.” His approach was characteristic of many discourses and arguments in The Federalist. James Madison frequently referred to the history of ancient Greece, while Hamilton repeatedly looked to the fate of the Roman Republic and to the history of English constitutional practice. Other antagonists engaged in similar mode of argumentation in the debate over the fate of the proposed Constitution of 1787.
Indeed, that tactic was not limited to the debates over the Constitution. For example, John Adams extensively discussed the history of Italian republics in his multi-volume work on contemporary state constitutions, A Defence of the Constitutions of Government of the United States of America, written from 1786 to 1788. After all, history is recorded human experience. The lessons that history might teach are drawn from the often-painful experiences and frequently tragic responses of those who went before us. The need to examine those experiences and debate their lessons was particularly acute when the undertaking was a new political order, Novus ordo seclorum, as the new motto placed on the Great Seal of the United States by the Confederation Congress promised. As Adams wrote to an acquaintance in connection with the publication of Defences, “They [the Italian republics] are the best Models for Americans to Study, in order to show them the horrid precipice that lies before them in order to enable and Stimulate them to avoid it.”
While history is the record of experience which subsequent generations can use as a primer in guiding their affairs, tradition (or custom) is the collective manifestation of that experience. It is “how things are done here.” Tradition sometimes is rejected because it is outdated for modern conditions, or at least appears to be so. But before rejecting tradition, it is wise to remember the precautionary principle captured in G. K. Chesterton’s Fence, an admonition best summarized as, “Do not remove a fence until you know why it was put up in the first place.” Tradition allows us to live in a social community without the chaos and inefficiency of having to learn anew each day how to organize complex human relationships.
The use of tradition to guard against rash, irrational, or oppressive political action has a long heritage. Reliance in ancient Roman republican constitutional practice on the mos maiorum, the tradition of the forefathers, sought to restrain arbitrary actions by ambitious politicians who might threaten the stability of the republic and the well-being of its citizens. Violations of tradition might have disastrous consequences. In Sophocles’s Oedipus Cycle, the Theban princess Antigone attempted to bury her dead traitorous brother in accordance with the ancient tradition rooted in divine commands. In doing so, she defied King Kreon’s decree to let the body be torn apart by animals. The deadly consequences of that decree for Antigone and for Kreon and his family is the stern lesson taught by the dramatist.
Another literary example is in Homer’s Iliad. The downfall of Troy results from the violation of the ancient Greek tradition of hospitality (xenia) by the Trojan prince Paris in running off with Helen, the wife of his host, the Spartan king Menelaus.
A more recent case in point is the Great Proletarian Cultural Revolution instigated in the 1960s in Red China by Chairman Mao. He urged radical Red Guards to destroy the “Four Olds,” old ideas, culture, customs, and habits. The disastrous result for the Chinese people was an exemplification of the chaos, misery, and suffering when the bonds of tradition are sundered, and societal fences are torn down irrationally.
American writers of the Founding appealed relentlessly to tradition to justify their actions. Their claims that the British government was violating their ancient rights as Englishmen by enacting statutes, such as the Stamp Act, might have been dubious politically and self-interested economically. Their references to Magna Charta might have been strained as a matter of history. Still, those arguments reflected an attitude Americans maintained throughout the period that theirs was a “conservative” reaction against dangerous constitutional usurpations that went against the very reason for government, namely, to protect human flourishing.
In the same manner, during the debates on the Constitution of 1787, the new charter’s supporters repeatedly rejected the argument that it was a radical anti-republican proposal. Instead, the writers of The Federalist Papers, particularly James Madison, claimed that the new document was built on the Articles of Confederation, with some modifications needed to correct the earlier charter’s most glaring deficiencies. Madison’s claim might have been in tension with the approach adopted early by the Philadelphia Convention of writing a new document rather than proposing amendments to the Articles. It might contradict some of his own positions in that collection of essays. But it was an argument frequently repeated in the state conventions. Indeed, the preamble to the Constitution itself declares that the object was to form a “more perfect Union,” not to create one.
The accumulated wisdom of those who have gone before us, which is reflected in living traditions, plays a particularly prominent role in law. “Law” is associated with constancy, predictability, and knowability. We speak of “laws” of physics, which means that the associated phenomena manifest themselves universally and regularly, that we can predict specific results from their applications, and that we can understand them through observation and reason, often expressed through the language of mathematics. Universal “law” in the context of human action is more speculative, but not entirely so. Discovering such law is predicated on observation and reasoned interpretation primarily of the experiences of people within one’s own culture at different times, but also of those of people in other cultures. Such universal prescriptions of “right” conduct, whether called natural justice, natural law, divine law, or something else, animate not just particular political decrees and legislation but also customs which direct how one should comport oneself more generally.
“Natural law” in that sense is a construct primarily of metaphysics, but also has clear connections to religion. It is an application of tradition to matters of government and politics, but it also has an inherent moral content, rooted in an external source. Consider, for example, the words of Saint Paul in his letter to the Romans that the Gentiles, who do not have the Mosaic law, nevertheless can in their nature act in accordance with the law because it has been placed on each person’s heart by God and is exercised through conscience.
Although natural law has an inherent moral content that exists independently of human practice, that content is best gleaned through investigation of how “things are done” over time and consistently, in other words, experience reflected in tradition. As Aristotle declared in Politics, “observation tells us that every state is an association, and that every association is formed with a view to some good purpose.” The manner in which something operates successfully over time is evidence that it acts in accordance with its true nature or essence.
In jurisprudence and juristic practice, the force of tradition is expressed in one form through the doctrine of stare decisis (“to stand by things decided”), the presumptive adherence to precedent in judicial decisions that promotes the stability and predictability which are the attributes of law. For example, a determination by the Supreme Court of what a provision of the Constitution means is binding on the lower courts. But even in matters heard by subsequent panels of the Supreme Court, the earlier Court’s holding is unlikely to be disturbed. Although this is not an invariable rule, the longer and more frequently that earlier precedent has been followed, the less likely the Court is to disregard it in a similar subsequent case. Many are the paeans that various justices have penned to the doctrine of stare decisis, although the cynic might say that the doctrine lasts only as long as it fits the author’s conception of the “right” result in a particular case. Adherence to precedent allows the courts to guard against the “dangerous innovations in the government,” the function to which Alexander Hamilton pointed in The Federalist No. 78 as the core purpose of judicial review of the constitutionality of legislation.
Because the object of the ethical state is to provide the conditions for human flourishing, those political arrangements which are most successful at that endeavor are the best. Human law is useful to provide the order needed for individual flourishing within a community. But not just any law, only law directed towards that end. The philosophic speculations of Aristotle about the limits imposed by natural justice on the human lawgiver, and the intellectually rich and politically significant investigations of “natural law” by philosophers from the classical Cicero to the medieval scholastic Thomas Aquinas, to the more modern Francisco Suarez and Hugo Grotius address ways to establish an ethical basis for ordinary human law and a proper balance between liberty and order, individual and community.
“Order” can mean many things. Fundamentally, the word conveys stability, rules, and limits. Tradition, law, and order are essentially bound. The concept of natural law is founded on the idea of an orderly universe governed by stable laws of physics and, regarding human action, universal rules of morality. The preeminent expositors of natural moral law, the European scholastics of the Middle Age, lived and wrote in a highly ordered society, where everyone had a designated place in that feudal order. Moreover, it was understood that human society itself existed in a universal order governed by God.
The advent of modernity rejected the strict structural approach of a universal order of which each person was a part. Instead, the focus became on voluntary association and consent as the basis of society, and on individual natural rights, rather than duties and rights derived from one’s place in the “natural” order of things and persons. The problem with a focus on individual will and consent as the basis for individual action is that it invites atomization, subjectivism, moral relativism, and nihilism, concerns vividly raised many centuries ago by Plato in his discussion of the “democratic man” in The Republic. Unbridled liberty is chaotic and threatens to veer into license, as there exist no external standards that can claim inherent legitimacy based on higher moral authority or the moral force conveyed by tradition. Each person becomes a moral standard only onto himself or herself.
Yet the need remains for structure and stability in an orderly society, lest the relations among people devolve into a competition defined solely by power, resembling a Hobbesian state of nature of a war of all against all. The solution proposed by various “left” writers, from Rousseau to Marxist-Leninists of various stripes, of a government where the rulers embody a stylized “general will” of the collective in place of the expression of individual wills inevitably has led to dictatorship and oppression. To have that necessary stability, yet foster individual flourishing, there must be, as various Supreme Court opinions have pronounced, “ordered liberty” whose fundamental principles are protected under the Constitution. The difficulty, of course, lies in striking that balance, of achieving practically what otherwise is only an aspirational slogan.
The Framers of the Constitution and other Americans of that era understood all of this quite well. John Adams and the New Englanders came to this knowledge and conviction easily, based on their Puritan culture. Hard-headed and practical statesmen, such as Alexander Hamilton and George Washington, understood this from life experience in political and military conflict. Even those drawn to more utopian ideas and more naive idealism, such as Thomas Jefferson, were brought down to earth by revulsion at the excesses of the French Revolution set in motion by radical ideologies. Liberty and order, change guarded by tradition, were the guiding principles of the Founders, informed by the lessons of history and by their own experiences.
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Principle of Governing to Secure Liberty of the People, Not Government
90 in 90 2023, 6. Guest Constitutional Scholar Essayists, Blog, George Landrith Essay 2: Principle of Governing to Secure Liberty of the People, Not Government – 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 LandrithOur Founding Fathers did not create a government or craft a constitution to serve government’s interests or even their own narrow interests. They created a government that focused on securing the liberty of the American people and that strictly limited and checked the power of the federal government. They had a great deal of experience with government that existed for the primary purpose of advancing the interests of those who already had tremendous political power.
They had experienced the tyranny of the British Crown. In the Broadway play “Hamilton,” King George sings, “And when push comes to shove, I will send a fully armed battalion to remind you of my love” and “when push comes to shove, I will kill your friends and family to remind you of my love.” While those exact words were not likely uttered by King George, that was what he did in practice. It also reveals the way so many rulers treated their subjects throughout history.
Our Founders specifically rejected this model of abusive and unlimited government. Virtually every government in recorded history either started out, or became first and foremost about increasing and preserving its own power, influence and prestige at the expense of its subjects. Rarely has government been focused on the citizen’s freedom and opportunity. That may be the rhetoric used to obtain or retain power, but it has rarely been the actual focus of government.
Every dictator in history has made promises of using the power that he sought for the benefit of the people. But virtually none of them have actually done it. It has always been a talking point, but not an action point. Whether it was Mao or Lenin, Hitler or Mussolini, Castro or Chavez, or the Ayatollah, they all promised to create a more equal and just society, and to right past wrongs. But, of course, history records that they magnified and multiplied the wrongs and made society far worse. They created societies of increased brutality, misery, and poverty.
In contrast, America’s Founders wrote a constitution that limited the power of government — even though they knew that they would likely be the early presidents, cabinet secretaries, congressmen and senators. In other words, they wrote a constitution that limited their own power. That proves they were not cut from the same cloth as most of the rulers we read about in history books. They formed a government designed to limit and check governmental power, but keep the people as free as possible from government’s arbitrary edicts and mandates.
Some argue that one of the weaknesses of our Constitution is that it is difficult and sometimes cumbersome to get things done. But that wasn’t by accident. It was by design. Our Founders understood that government’s power to do evil and to compromise and abridge the natural rights of its citizens was far more significant than the likelihood that government power, if left unchecked, would be used to benefit the citizenry or preserve their freedoms.
So our Founders wisely placed limits on their own power. They did this because they wanted to create a society where the freedoms and the opportunities available to the citizenry were virtually unlimited. They did not see themselves as rulers and American citizens as their subjects. They saw themselves as having been temporarily entrusted with limited powers to govern, not rule; and they saw Americans as citizens, not subjects.
George Washington, the president of the constitutional convention where our Constitution was written, debated and passed, and our nation’s first president, refused to be called by the titles that many of the kings and powerful were called in Europe. He said “No” to being called His Highness, His Excellency, His Mightiness, His Elective Majesty, among others. He said his title should be “Mr. President.”
At that time, those of power and wealth had titles — Lord, Duke, His Grace, etc. In contrast, a person of common station, with no real societal power, was referred to simply as Mister. And that is the title that George Washington chose to emphasize that the government they were forming wasn’t there to benefit those who held office, but to guarantee freedom and opportunity to its people.
But it wasn’t merely George Washington who rejected the historical political power model of Europe. The Founders as a group wanted to build a society whose foundation included the principles of self-government, but that also didn’t subject our basic rights to the popular vote. Simply stated, the Bill of Rights makes it clear that even if the vast majority of Americans don’t like what you’re saying or writing, you have the right to say it or write it.
Even if the majority dislikes you, you have the right to due process and a fair trial if you’re accused of a crime. Even if the government wants your property and claims to need it for the public good, it may not take it from you without paying you for its value. The Bill of Rights, properly understood, is not a statement of rights as much as it is a firm prohibition against government and the majority trying to abridge our God-given rights. So our Founders crafted a government designed to empower the people through majoritarian processes, but also protected our rights — placing them beyond the power of a popular vote or the power of government to abridge.
If we think about the type of constitution that most people throughout history who have aspired to power would write, we would see few limits on their power and a great deal of limits on the people and their rights. But our Founders were very different and that made a huge difference in the sort of nation the United States of America became.
It was John Adams, our nation’s second president and a crucial Founder, who said in a letter, “We ought to consider, what is the end of government, before we determine which is the best form.” [1] And the Founders did precisely that. They thought about what they wanted America to become — a land of freedom and opportunity for its citizens — and carefully crafted a constitution to accomplish that goal. This is proof positive that our Founders were very different from most of history’s politically powerful figures.
Our Founders understood the fundamental importance of limiting the power of government and leaving the people free to govern the details of their own lives. As James Madison said in the Federalist Papers, Number 51,
Throughout history, governments had whatever powers they could get away with exercising — including genocide and murder of the masses. But our Founders designed a government that would be the foundation for a civil society of order and peace, but anywhere beyond that, government was forced to limit itself and its actions.
This has made all the difference and launched America to greatness. This approach made Americans the freest, most prosperous people in the world. People clamor to come to America from all over the globe because they see it as a shining city on a hill and as a land of opportunity. When the power of the government is constitutionally limited, the freedoms and opportunities of the people are maximized and the people thrive rather than merely survive.
Our Founders got it right — they didn’t build a government to benefit themselves or make government all-powerful. They carefully crafted a constitution that made Americans free, protected their rights, and made opportunity a key feature of the nation. That makes our Founders unique in history and we owe them a debt of gratitude.
[1] John Adams, Thoughts on Government, in a letter in reply to William Hooper 1742-1790, North Carolina Continental Congress Delegate and John Penn 1740-1788, North Carolina Continental Congress Delegate, April 1776. https://teachingamericanhistory.org/document/thoughts-on-government-2/
Further reading:
Papers of John Adams, volume 4, III Thoughts on Government, Massachusetts Historical Society
https://www.masshist.org/publications/adams-papers/index.php/view/ADMS-06-04-02-0026-0004
The Works of John Adams, vol. 4. Part of The Works of John Adams, 10 vols. A 10 volume collection of Adams’ most important writings, letters, and state papers, edited by his grandson. Vol. 4 contains Novanglus, Thoughts on Government, and Defence of the Constitution. https://oll.libertyfund.org/title/adams-the-works-of-john-adams-vol-4
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Introduction: First Principles of the American Founding
90 in 90 2023, Adam Carrington, 6. Guest Constitutional Scholar Essayists, Blog 2023 - First Principles of the American Founding, Essay 1: Introduction: First Principles of the American Founding – Guest Essayist: Adam Carrington, 13. First Principles of the American Founding, Adam Carrington, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesEssay Read by Constituting America Founder, Actress Janine Turner
What are principles? We speak of them often in politics, history, philosophy, and other fields of study. We praise those who have them, or at least those with which we agree, and criticize those who lack them altogether.
Simply put, principles articulate a standard. This standard carries a certain authority, providing a measure by which to judge thoughts, words, and deeds.
We need principles to answer questions regarding the thoughts, words, and actions of ourselves and our fellow human beings. We want to know whether they are true or false, just or unjust, advantageous or not. Principles help us to know better what is and what should be.
First principles, then, answer not just any questions. They are first in two ways. One, they come first chronologically. We must address them before we can move on to other subjects dependent upon them. Second, first principles deal with the most important matters. In politics, they address the fundamental concerns of and set the essential standards for a political community.
The American Founding was an exercise in articulating, debating, and implementing political first principles. The Continental Congresses did so in debating with England and declaring independence. The Convention of 1787 in Philadelphia did so in crafting the Constitution to replace the Articles of Confederation. And state ratifying assemblies all engaged in debate and decision regarding this document, resulting in its ratification.
We should know the underlying questions and resulting principles animating these discussions, documents, and decisions. First, the Founders discussed who should rule: one king, a few aristocrats, or the people. This question itself rested on another, namely whether or not all humans were inherently equal and thus the place of consent in legitimate rule. It consequently touched on the institution of slavery, race, the role of women in society, and more.
Second, the Founders addressed the right ends or goals for rule. Do governments exist for the good of the ruler or of the governed? Should laws merely protect from harm or inculcate virtue? Where do rights ultimately come from, social convention, human statute, or natural law? These matters also required addressing linked issues such as the purposes of human life, the limits of education, and the relationship between religion and politics. It demanded a reckoning on the good and bad of human nature.
Third and finally, the Founders considered how to structure and run government. This point depended heavily on the answers to the first two sets of questions. Who ruled and for what purposes dictated much regarding the institutions and processes a just government involved. But those sets depended for their efficacy on this one. Government must be good at its job and limited only to that job. How the Constitution structured lawmaking and law enforcement mattered immensely to how well America’s governments would realize their intended goals and reflect the country’s ultimate rulers. Should we divide political power among state and national governments, thereby establishing a system of federalism? On what principles would that division be made and maintained? What about within particular governments? Should we have a separation of powers among independent institutions and, if so, based on what functions of political action? Moreover, what should the lawmaking process involve? How should we select judges? These and more the Founders debated and decided on the intellectual and practical road that led to our Constitution’s creation, ratification, and implementation.
In returning to this history and these principles, we must remember none of it started in 1787 or even 1776. The Founders partook of a discussion and a history stretching back throughout recorded human history, from Ancient Greece and Rome to Medieval Christendom and post- Reformation England. They knew this history and reacted to it in their own thoughts as well as deeds. In addition, they did not all perfectly agree with each other, whether about that history or about what should be done in their own time. Their debates helped refine the resulting principles, institutions, and practices that make up our history and continue to add definition to our own time.
Over the course of this series, we will explore the roots, debates, and reasoning of America’s first principles. Thus, we will enter the great discussion in which they made such a lasting and magnificent contribution. We will see something essential about our past and our present. In the process, we will learn better how to take these principles and apply them for our future. Please join us on that journey better to know our Constitution, our country, and ourselves.
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Keeping the Republic: America’s Founders on the United States Constitution and Upholding Tradition, Continuity, Virtue and Stability of Good Government
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 90: Keeping the Republic: America’s Founders on the United States Constitution and Upholding Tradition, Continuity, Virtue and Stability of Good Government – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathThe United States Constitution is the product of a process which attempted to address perceived inadequacies of the Articles of Confederation in dealing with practical problems of governance. Its writers sought to provide practical solutions, shaped by their experiences. On that matter, it was irrelevant whether the Philadelphia Convention technically acted outside its charge from the states and the Confederation Congress and produced a revolutionary new charter, which argument James Madison disputed in The Federalist, No. 40, or whether the Constitution was a mere extension of the Articles and “consist[ed] much less in the addition of NEW POWERS to the union, than in the invigoration of its ORIGINAL POWERS,” as he averred in essay No. 45.
There are numerous devices in the Constitution to frustrate utopian schemes. Most of them are structural. The drafters understood that utopian schemes were more likely to succeed in smaller and more homogeneous communities. Madison in The Federalist, No. 10, identified the problem as one of faction, where members of a community joined by a common passion to gain power. Derived from the natural inequalities among human beings, factions are a foreseeable part of society. While democracies are most susceptible to control by an entrenched faction, small republics are not immune. The danger somewhat abates across a state but is least likely to occur in the nation and within its general government. As he explained. Vividly:
The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction in a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: 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 a 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.
Madison continued along the same vein in essay No. 51, “In the extended republic of the United States, and among the great variety of interests, parties, and sects, which it embraces, a coalition of the majority of the whole society could seldom take place upon any other principles, than those of justice and the general good …. And happily for the republican cause, the practicable sphere may be carried to a very great extent, by a judicious modification and mixture of the federal principle.” [Emphasis in the original.]
In Madison’s view, emergence of a permanent majority faction was more concerning, as minority factions would be controlled through majority voting. Fortunately, the diversity of religious, economic, ethnic, and customary influences creates shifting alliances among various factions, none of which would become an established majority at the national level. This creates a protective moat for society against dangers from radical policies which one faction might seek to impose on the country. In addition, the structural balance of formal constitutional powers between the national government and the states, further prevents any utopian faction in one state from readily spreading to another. This “federal” structure is enhanced by what Madison considered to be the adoption within the Constitution of the principle of subsidiarity, that is, that most political matters would be handled at the lowest level of political units, rather than by Congress.
In essay No. 51, Madison also explained another protection against a radical utopian faction gaining hold of the national government, the separation of powers. That separation consists of two parts in the Constitution, namely, provisions which guarantee to each of the branches a degree of immunity and independence from the other, as well as provisions which create a blending and overlapping of functions and require the different branches to collaborate to create policy. Examples of the first group of provisions are the control each branch of Congress has over its membership and the immunity of its members from prosecution for debates in Congress; the President’s privilege to withhold information from the other branches protected under, among other sources, the “executive power” clause; and the Supreme Court’s tenure during “good Behavior.” Examples of the second are the Congress’s power of the purse, the requirement that both chambers agree to the same legislation, the President’s qualified veto over legislation, and the Court’s power of judicial review. These protections help guard against rash policies and, as Alexander Hamilton phrased it in The Federalist, No. 78, “dangerous innovations in the government, and serious oppressions of the minor party in the community.” Moreover, many state constitutions incorporate similar principles of separate, yet overlapping, powers.
Leaving aside the unelected judiciary, the selection process for these positions supports the protection against radical utopian factions. Much of the operation of the political system under the Constitution, as distinct from its substantive powers, is ultimately founded in the federal system of states. Madison addressed the complex interrelationship between national and federal characteristics of the Constitution in The Federalist, No. 39. The people elect the House of Representatives, and representation is apportioned among the states on the basis of population, which are “national” characteristics. However, the states respectively determine the qualifications of the voters through their control over the electoral franchise for their own legislatures. Moreover, each state is guaranteed at least one seat, so even the population basis of the House is qualified by the existence of the states. The Senate is organized on the basis of the equality of the states in their corporate political capacities, a “federal” characteristic, and members originally were elected by the state legislatures. The president is selected by a body which is based on allocations of electoral votes among the states through a combination of population and state equality. Moreover, these electors are selected by the state legislators. As Madison explained in essay No. 39, the eventual election of the president was expected to be made by the House of Representatives, but on that occasion voting by state delegations.
The state-centric nature of these operative aspects of the constitutional structure helps diffuse power among various constituencies within a state and among different states. House members today are typically elected in single-member districts, whose constituents might be quite diverse from district to district. As originally envisioned, presidential candidates were selected by electors through a national, or at least regional, frame of reference. With the advent of modern political parties and the demographic changes over the past century, the president today is elected by a national constituency. Still, having to gain the endorsement of one of the two major political parties by having to appeal to different types of constituencies complicates the efforts of a radical faction’s candidate to gain sufficient power to orient the nation’s policies in a utopian direction. Political pragmatism and compromise is the inertia within the system.
One might add to these constitutional rules others of a more institutional origin. One such device which protects against utopian projects by a majority faction is the Senate’s “filibuster” rule. Another is the collection of arcane parliamentary procedures in the houses of Congress which can be used to derail or moderate legislation. Yet another is the committee structure and, at least in the past, the seniority system for chairmanships when powerful committee chairmen could frustrate the demands of the majority.
The problem with this presentation of a system of machine-like operation under clear constitutional rules that create a carefully-calibrated balance among various political actors, all while allowing government to function, yet protecting minority rights and guarding against dangerous utopian tendencies, is that it flatters irrationally. Seeing the political system only through the technical functioning of the rules is slanted and presents what one might call a “utopian” view. In fact, a hard look at the current system is needed to see how differently it operates.
At the level of national versus state governments, both consume a vastly greater percentage of Gross Domestic Product than a century ago, never mind two centuries ago. The national government’s share in particular has increased manifold. The national debt is at a record peacetime high in relation to GDP. The current use of debt by all levels of government would make the schemers in the state governments of the 1780s blanch. Congress today uses its legislative powers over interstate commerce, taxing, and spending to intrude into the most local and personal activities. Madison’s explanation in essay No. 39 of The Federalist that the national government’s jurisdiction extends to only a few enumerated ends, while the states have “a residual and inviolable sovereignty over all other objects” seems quaint and quizzical. Indeed, the very concept of residual state sovereignty has been neutered through Congress’s use of its taxing and spending powers, just as the Anti-federalists predicted and Hamilton attempted to refute in essays No. 32 and 33 of The Federalist. Prodigious government grants of money are a lifeline for much academic research, and those funds are readily applied to advance utopian projects by their recipients. As to legislation at the state and local levels, the ubiquity of laws far surpasses that of the earlier time, a product perhaps of a more complex society or the fact that legislating has become a full-time occupation for many politicians today.
As to the separation of powers, the contrast between the Constitution’s text and the operation of the system is if anything, starker. The proliferation of “alphabet agencies,” unencumbered by doctrines of separated functions, make rules, enforce them, and adjudicate violations of those rules in formally civil, but functionally criminal, proceedings. Those rules, adopted by generally unaccountable “independent” commissioners, administered by career functionaries, and virtually immune from judicial challenge, constitute the vast majority of the American corpus juris. There has been significant research into the political tactic of “regulatory capture,” whereby private entities, be they businesses, unions, or ideological “NGOs” (Non-Governmental Organizations) effectively take control of regulatory agencies. The danger with the last of these is that they often pursue utopian agendas behind the label “public interest,” rather than the more prosaic economic benefits to which the first two usually direct themselves.
There has been a concomitant expansion of executive power. The growth of the White House budget for various in-house offices, agencies, and directors which often parallel the domains of the formal constitutional departments, yet are independent of them, is one measure. As well, vast delegations of authority by Congress to the executive branch occurred as early as the Woodrow Wilson administration. The Supreme Court took some desultory steps against such delegations during the 1930s. Justice Felix Frankfurter warned about the expansion of executive power in his concurrence in Youngstown Sheet & Tube v. Sawyer, the famous Steel Seizure Case in 1952. Yet the Supreme Court has not struck down such a delegation in nearly a century. Some of this delegation, as well as broad ritualistic claims of inherent executive authority, arose in connection with war or other emergencies. Unsurprisingly, those powers continued during peace. A claim of discretionary power to act in emergencies inevitably produces more claims of emergencies. As shown by quite recent history, similar displays of broad executive power and uncontrolled administrative governance are part and parcel of state and local systems, as well.
As to constitutional barriers to utopianism provided by the electoral structure, or institutional barriers through the filibuster, one must wonder about their continued efficacy. Gerrymandering of districts has produced many “safe” partisan districts, where primary elections control the eventual outcome. Primary elections—or local party caucuses—attract the most ideologically committed participants. Such gerrymandering has been blamed for the election of candidates committed to ideologically pure, but practically harmful, utopian policies.
The mobility of American society and the advances in communications technology and entertainment have challenged Madison’s basic assumption about the diversity of interest groups rooted in different geographical areas. The electorate has become much more homogeneous and “national,” so that a nation-wide electoral majority might degenerate into an ideological faction similar to what Madison described was the danger in a local democracy. Candidates, too, are less dependent on the moderating influences of party organization. One need only to consider the emergence of billionaire-politicians and celebrity-politicians who can use their money or status to capture a party’s nomination and, subsequently, the office, without the support of the party’s established apparatus. Institutional restraints, such as the filibuster, have been weakened and are threatened with elimination, which would further undermine protections against a bare majority faction in Congress imposing utopian projects on the country.
Madison dismissed the dangers of a minority faction controlling Congress because of the “republican principle” of majority vote. But a minority faction driven by utopian fervor is much more likely to coalesce than a majority, and Madison’s faith in the vote is too blind to that danger. It has long been established that an ideologically committed organized minority can control an unorganized majority in politics or otherwise. The large economic or psychological benefits of a policy to the members of the minority outweigh the proportionally smaller costs to each member of the majority. With the increased and hidden power of unelected entities described earlier, the danger becomes more acute. One example should suffice: Before his inauguration, President-elect Donald Trump challenged leaked, unsubstantiated claims by American intelligence agencies that Russia had hacked the 2016 election. Senator Charles Schumer then warned President Trump, “You take on the intelligence community—they have six ways from Sunday at getting back at you.” Schumer was not alone in that prognosis. The specter of the hidden intelligence apparatus undermining the president in pursuit of an ideological objective has been raised many times over the past decades and is in direct conflict with the constitutional order.
In similar manner, the doctrine of judicial review has increasingly been used to advance constitutional novelties. The Constitution provides a formal amendment process, based on broad super-majoritarian approval that is, in Madison’s description, partly federal and partly national. It requires broad consensus in Congress and among the people or legislatures of the states. There has also developed an informal amendment process which retains elements of popular approval and consensus. For example, when Congress passes a law, the president signs it, and there is no successful constitutional challenge brought to the law in the courts, continued and open adherence to that law by the people over time makes that law’s political essence part of the constitutional fabric. A similar development occurs if a significant number of states pass laws respecting a particular matter of state control, if those laws do not conflict with a clear constitutional provision. A constitutional challenge to such well-established laws years later ordinarily should be rejected, because, as Hamilton stated, the purpose of judicial review is to prevent sudden popular passions from passing laws which violate established constitutional rules and threaten individual rights.
In that sense, judicial review is “conservative.” Judicial review is not intended to have five unelected judges decree a novel constitutional order by overturning long-established laws. That is the function of lawmakers in legislatures or constitutional conventions. Yet, the Supreme Court at times has taken on that function by discovering fanciful, previously unheard-of constitutional meaning in ambiguous clauses. These discoveries typically reflect the views of a narrow socio-political elite more than those of the citizenry at large. An ideologically committed minority faction is thus able to impose its utopian vision on the majority.
One can easily come up with more examples of current functional weaknesses and dysfunctions in the constitutional system described by the writers of The Federalist. The Anti-federalists broadly predicted many of the current developments, although it is to be doubted that their proposals, to the extent they had any, would have worked better to preserve the republican nature of the original order. Nor is it to be understood that all changes are necessarily bad. One might well agree with the social benefit of some of the constitutional innovations from the Supreme Court, yet be concerned about the way in which those changes came about. One might accept that some of the actions of the unelected agencies have been for the public good, yet worry about the threat to republican self-government posed by the bureaucratic state of self-declared “experts.” One might favor certain policies enacted into law by Congress, yet question the desirability of a system which increasingly micromanages life from thousands of miles away.
There are many ominous signs which suggest that we have lost our republican form of government as envisioned by the Framers. What we have left, it often appears, are certain trappings and rituals, much as happened with the Roman senate and other republican institutions during the Roman Empire and beyond. Perhaps the classic expositors of republics were right, that such a form of government cannot exist over a large area with many diverse groups of people. Perhaps Madison’s faith in the representative system was shaped by an implicit acceptance of the Aristotelian assumption that self-government was possible only in a community small enough that one could speak of “friendship.” There was much debate among classic writers about the size limits of community. One person did not make a polis. With 100,000, one no longer had a polis. At the time of the Philadelphia Convention, the largest state, Virginia, had a population over 800,000, including slaves. The next largest, Pennsylvania, had under 500,000. The debate over proper-sized districts for the House of Representatives, the most “republican” part of the government, settled the number at 30,000 residents per representative. The Anti-federalists challenged this ratio as too high and unrepublican by pointing out that in Pennsylvania’s state legislature, the ratio was one representative for each four to five thousand residents. Madison replied in essay No. 55 that the House of Representatives would only deal with national matters which do not require particular knowledge of local affairs or connection to specific local sentiments. Today, each congressional district approaches the then-population of Virginia, and the Congress regularly passes laws which have profound local effects. Whether or not Aristotle was correct about the precise limits of “community,” surely it beggars belief to say that today’s congressional districts are republican in anything but name.
Long tenures in office were another danger, according to republicans. The Articles of Confederation limited the number of terms a member of Congress could serve. The Constitution does not. Hence it is common for representatives to spend decades in office, which results in part from the difficulty of ousting incumbents in large districts gerrymandered to protect them. It is problematic to claim that such effective life tenures are “republican.”
Another important role in republican systems is played by various non-governmental social associations, such as the family, religious institutions, unions, and charitable groups. The 18th-century Anglo-Irish philosopher and politician Edmund Burke centered his theory of constitutional stability on the vitality of such institutions, which represent tradition and continuity and thereby guard against radicalism and turmoil. Burke was quite familiar to Americans for his vindications of their political claims before and during the Revolutionary War. He contrasted the stability of the English constitutional system with the situation in France. He was horrified by the violence of the French Revolution which grew from its utopian radicalism. It is inevitably the object of totalitarian governments to destroy or subjugate such intermediary institutions which threaten the power of the state over the people.
One must consider, then, some uncomfortable topics. To what extent has the American family structure been undermined by divorce, single parenthood, and various incentives created through the welfare state? How significant are religious institutions in the life of Americans today compared with preceding generations? With the exception of public employee unions, how significant are labor unions today? The same question must be asked about the vitality of local business associations and related service clubs, which played such significant roles in communities in the past.
The great Northwest Ordinance of 1787 declared, “Religion, morality, and knowledge being necessary to good government and the happiness of mankind, schools, and the means of education shall forever be encouraged.” This goal reflects the inculcation of private virtue which the different groups of American republicans agreed were a necessary basis for the preservation of republican government, even if some argued that it was not a sufficient basis. Are educational institutions fulfilling their task of teaching the heritage, morals, and substantive knowledge upon which the founding generation staked the success of their republic, or has the radicals’ long march through those institutions corrupted that mission?
Is the current dynamic of identity politics leading us to a dangerous tribalism which tears the social bonds necessary for a stable and peaceful community? If factions are the bane of republican systems, will the stress of this anarchic impetus ultimately lead to a collapse into the tyranny which the Anti-federalists feared?
If freedom of the press is needed for “republican form of government,” are the media providing useful information to the public or at least performing their self-appointed task of bravely and indiscriminately “speaking truth to power”? Or have they become so ideologically blinded to convince themselves of the righteousness of their quest to indoctrinate the public, that they have vindicated Thomas Jefferson’s indictment of the press in his 1807 letter to John Norvell, “Nothing can now be believed which is seen in a newspaper. Truth itself becomes suspicious by being put into that polluted vehicle….The man who never looks into a newspaper is better informed than he who reads them, inasmuch as he who knows nothing is nearer to truth than he whose mind is filled with falsehoods and errors.”
Many of these dysfunctions were spawned by utopian schemers who without thought or hesitation cast aside rules and institutions forged in human experience. They failed to heed G.K. Chesterton’s warning in his parable of the fence built across a road not to tear it down until one clearly understands why it was erected in the first place.
As explored over these 90 sessions, the Constitution’s drafters constructed a framework of republican government and the means to preserve it. The structural components of the system, functioning as intended, assist that task. However, the Framers understood their own fallibility and the fragility of their creation. The Constitution is just a parchment. To give it life requires the attention of a civically militant citizenry committed to the preservation and functioning of its parts. That is the politics of the true “living constitution.” And, as has been said, politics is downstream from culture. The French philosopher Joseph de Maistre pungently observed, “Every nation gets the government it deserves.” Although his comment was about Russia, it would have particular relevance for a republic. Likewise, in his famous aphorism, Benjamin Franklin did not just say to Mrs. Elizabeth Powel that the convention had produced a republic. He added, wittily but ominously, “if you can keep it.” The question is whether the American people continue to be up to the challenge.
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First Principles of the American Founding (Web)
BlogEssay #1 – INTRODUCTION
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Essay #2 – Principle of government exists to secure liberty of the people rather than government existing to benefit itself. “We ought to consider, what is the end of government, before we determine which is the best form.” – John Adams, Thoughts on Government, in a letter in reply to William Hooper 1742-1790, North Carolina Continental Congress Delegate and John Penn 1740-1788, North Carolina Continental Congress Delegate, written spring 1776 in reply to NC delegates Hooper and Penn requesting Adams’ considerations on republican government for America upon gaining independence from Great Britain.
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Essay #3 – Principle of regard for history, order, and tradition.
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Essay #4 – Further on drawing from history, order and tradition in the formation of America’s founding documents such as the Declaration of Independence and United States Constitution of the 1700s. In 1639, a new colony, Connecticut, later a state gaining the motto “The Constitution State,” was founded by Reverends Thomas Hooker and John Davenport. Along with others, the Fundamental Orders of Connecticut were drafted, forming what is considered the first constitution in America. “…so to order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and upon the River of Connecticut and the lands thereunto adjoining; and well knowing where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established…General Assemblies or Courts…Court of Election…Magistrates…liberty of speech…Governor…promote the public good and peace of the same…maintain all lawful privileges of this Commonwealth; as also that all wholesome laws that are or shall be made by lawful authority here established, be duly executed…” – segments from the Fundamental Orders of Connecticut, January 1639.
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Essay #5 – Principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence.
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Essay #6 – Further on the principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence. In 1641, the Massachusetts Body of Liberties was written by a Puritan minister, Nathaniel Ward, considered the first bill of rights in America, continuing influences gained from those such as Magna Carta and others in the 1600s and into the 1700s for American law to come, and recognizing one is born with rights no government may take away. “The free fruition of such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement hath ever been and ever will be the tranquility and stability of churches and commonwealths. And the denial or deprival thereof, the disturbance if not the ruin of both. We hold it therefore our duty and safety whilst we are about the further establishing of this government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent…” – With enumerated sections, in its original English spelling, the document was entitled, A Coppie of the Liberties of the Massachusets Collonie in New England, December 1641.
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Essay #7 – Classical history and significance of republican government as adopted by the United States and its influence during the American Revolutionary War.
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Essay #8 – Principle of constitutional restraints to prevent the undermining of interests of the entire Union. The Founders’ Join or Die efforts to protect the new Union of colonies to become a United States with state governments and one federal government with limits, resulted in Benjamin Franklin’s editorial cartoon running May 9, 1754 in his Pennsylvania Gazette, a picture of a snake cut in pieces representing the colonies. It served as a warning to join together or be destroyed by opponents of America. During tumultuous events of the French and Indian War, fighting the Stamp Act, and working toward independence from Britain, Americans agreed on protecting the Union.
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Essay #9 – Principle of natural law opposition to tyranny that binds a free people together and cannot disjoin them. “When the law is the will of the people, it will be uniform and coherent: but fluctuation, contradiction, and inconsistency of councils must be expected under those governments where every revolution in the ministry of a court produces one in the state. Such being the folly and pride of all ministers, that they ever pursue measures directly opposite to those of their predecessors…We shall neither be exposed to the necessary convulsions of elective monarchies, nor to the want of wisdom, fortitude, and virtue, to which hereditary succession is liable. In your hands it will be to perpetuate a prudent, active and just legislature, and which will never expire until you yourselves lose the virtues which give it existence…Our Union is now complete; our constitution composed, established, and approved. You are now the guardians of your own liberties.” – Samuel Adams, Speech on American Independence, August 1, 1776.
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Essay #10 – Further on principle of appropriate role and purpose of government in protecting liberty of the citizenry and the function of running their own government.
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Essay #11 – Principle of educating based on ethical, philosophical self-evident truths of good government, designed for a free people, recognized as important for acquiring civic virtue. “when the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. the exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.
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Essay #12 – Principle of educating based on ethical, philosophical self-evident truths of self-government and a good system of government for the country, designed for a free people, recognized as important for securing and continuing the blessings of liberty for future generations of Americans. The New England Primer, published in 1690, served as the main textbook through the nineteenth century. It was used to educate Americans on virtue, morals, and how to read.
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Essay #13 – Principle of civic duty, civic engagement. In a letter, John Adams wrote from Philadelphia to his wife, Abigail, April 26, 1777. Battle weary, Adams stated as he closed, “Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it.” Adams hoped future Americans would accept responsibility to preserve what was being established in his day. Declaration of Independence grievance: “He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.”
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Essay #14 – Principle of civic duty to petition their own government for a redress of grievances.
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Essay #15 – Principle of civic duty to rein in overreaching government. “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).
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Essay #16 – Principle of citizenship, love of country. “The Unity of Government which constitutes you one people is also now dear to you. It is justly so; for it is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize. But as it is easy to foresee, that from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.
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Essay #17 – Principle of America’s national sovereignty. “That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear; it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people.” – Thomas Jefferson in his pamphlet, “A Summary View of the Rights of British America” July 1774, Williamsburg, Virginia.
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Essay #18 – Further on principle of America’s national sovereignty upon preventing loss of independence to foreign or global governments acting as with binding authority in attempts to undermine the United States.
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Essay #19 – Principle of peace through strength. “Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?…It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).
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Essay #20 – Principle of foreign policy based on a standard of freedom and independence. Thomas Paine, The American Crisis, December 19, 1776, Pamphlet 1, speech on “These are the times that try men’s souls” – not quitting in their fight for independence, writing how tyranny is not easily conquered, “Britain, with an army to enforce her tyranny, has declared that she has a right (not only to tax) but “to bind us in all cases whatsoever.”
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Essay #21 – Principle of Creator-endowed unalienable rights.
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Essay #22 – Principle of natural law as the foundation for constitutional law. “government by election and representation has its origin in the natural and eternal rights of man” – Thomas Paine, Dissertation on First Principles of Government, 1795.
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Essay #23 – Principle of appropriate role and purpose of government upon protection of unalienable rights, unchangeable, inherent, natural rights. The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power. – Alexander Hamilton in his pamphlet, The Farmer Refuted, February 23, 1775, New York.
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Essay #24 – Principle of a written United States Constitution that is the supreme law of the land, designed for the preservation of liberty for each generation of future Americans since its ratification. “…a voyage to plant the first colony in the northern parts of Virginia, do by these presents solemnly and mutually, in the presence of God, and one of another, covenant and combine our selves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions and offices…” After high winds blew the ship off course landing the Pilgrims hundreds of miles off their destination, the first American document designed for self-governing, called the Mayflower Compact, was signed November 21, 1620 (November 11, old calendar) aboard the Mayflower ship at Cape Cod, what is now Massachusets. With an understanding, from experience about tyrannical rule, the early American settlers knew the importance of good governing and that a document to form it should be written for doing so themselves at the place they landed. Forty-one men signed the agreement that would help lay the framework for the new nation’s future Constitution.
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Essay #25 – Further on the principle of a written United States Constitution, a contract allowing, under strict limits, a government to run under the authority of the American people within the states. “There are in the productions of all of them, among many excellent things, some sentiments, however, that it will be difficult to reconcile to reason, experience, the constitution of human nature, or to the uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern.” – John Adams in his 1787-1877 A Defense of the Constitution of Government of the United States of America, Letter I, Volume I, Preliminary Observations, Grosvenor-Square, October 4, 1786, part of a three-volume response sparked by a 1778 letter degrading American constitutions as not enough in republican form for the people to remain in control but were only repeating dictatorships America was trying to escape. Adams argues this is not the case.
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Essay #26 – Principle of self-governing. “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 every where, 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…Receive this Address with the same candor with which it is written; and may the spirit of wisdom and patriotism direct and distinguish your councils and your conduct.” – 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.
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Essay #27 – Principle of decision making by the majority within a constitutional framework.
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Essay #28 – Principle of law and order based on immutable, constant laws of nature and of nature’s God rather than the arbitrary will of any human ruler or mob rule. “I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin, No. 2, April 16, 1722, New-England Courant.
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Essay #29 – Principle of decentralized government where power is on the local level with each individual American and the states. “Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical…Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government.” – Melancton Smith, Delegate, First Provincial Congress in New York; June 27, 1788 Notes during days beginning the New York Ratifying Convention.
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Essay #30 – Principle of limited government. “With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” – James Madison in a letter to James Roberts, Jr on April 20, 1831.
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Essay #31 – Principle of equality over equity, equal opportunities instead of guaranteed outcomes which cannot be guaranteed unless free market choices, competition, product development and improvements are extinguished.
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Essay #32 – Principle of meritocracy.
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Essay #33 – Principle of representative government under direction of the people rather than king rule, a principle applied by the American Founders in the United States Constitution. “But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.” – Thomas Paine, Common Sense, February 14, 1776.
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Essay #34 – Principle of representative government over a hereditary system. “…for it is impossible to discover superiority of right in any family, by virtue of which hereditary government could begin… It is one step toward liberty, to perceive that hereditary government could not begin as an exclusive right in any family…With respect to the first of these heads, that of a family establishing itself with hereditary powers on its own authority independent of the nation, all men will concur in calling it despotism…It operates to preclude the consent of the succeeding generations, and the preclusion of consent is despotism.” – Thomas Paine, Dissertation on the First Principles of Government 1795.
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Essay #35 – Principle of free government and free society, entrusted to the hands of the American people, never confiscated by a tyrannical government system working to control rather than serve the citizenry.
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Essay #36 – Principle of separation of powers, involving checks and balances on those powers: maintaining separation for any power of office held in order to prevent development of tyranny, to prevent concentration where power is built up into one place which prevents checks or restraints by the people. The first grievance in the Declaration of Independence where the king refused to pass laws; The first of the seven Articles of the United States Constitution, Articles I, II, and III, show separate branches of governing and their powers including how they are chosen.
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Essay #37 – Principle of duty of the American people to continually observe government decisions and maintain checks on government power. “Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world, from the eastern to the western hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.” – Patrick Henry, speech before the Virginia Ratifying Convention, June 5, 1788.
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Essay #38 – Principle of a Legislative Branch, first within a system of government closest and as local to the people as possible with a limited federal government and strong local and state governing so that the people remain in control of their own government, with the Legislative Branch having been listed first in the Constitution for this purpose and to show it as the most important, then the Executive, then the Judiciary.
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Essay #39 – Principle of an Executive Branch, a strong executive but a role accountable to the people, the legislature, which seats a president and not a king, and the Executive Branch is controlled by the Legislative Branch which is closest to the people. The Executive Branch is listed second in the Constitution after the Legislative Branch.
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Essay #40 – Principle of a Judicial Branch, forming a Supreme Court and having the least amount of power of the three branches and no legislative power. The third branch of United States government, the Judicial Branch, is listed last in the Constitution after the Legislative and then Executive Branch.
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Essay #41 – Principle of rule of law, not of men; careful observance of the formation and execution of laws.
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Essay #42 –Principle of consent of the governed, that government without consent is overreaching its appropriate bounds, having moved from governing to tyranny. “…that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country…These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further…The sum of my argument is, That civil government is of God…That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature…” – James Otis, Rights of British Colonies Asserted and Proved, pamphlet, 1763.
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Essay #43 –Further on the principle of rule of law: difference between a mandate and a law, Founders’ warnings against arbitrary laws or mandates handed out as having the force of law which dilute the meaning of true law and order that protect the liberty of the people.
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Essay #44 – Principle of justice for all.
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Essay #45 –Principle of equal justice under the law.
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Essay #46 – Principle of a political system with criminal and civil law, enacted by a legislative body, and accessible to all American citizens. “…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and mde directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.
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Essay #47 –Principle of due process of law.
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Essay #48 – Principle of innocent of any crime until proven guilty.
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Essay #49 –Principle of freedom of a person under the protection of habeas corpus.
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Essay #50 –Principle of courts with justices who hold their offices during good behavior; importance of the phrase “during good behavior” for public servants. “Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788.
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Essay #51 –Principle of no unreasonable searches or seizures.
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Essay #52 –Principle of right to a speedy trial by a jury of peers, public, impartial, without cruel or unusual punishments, as part of the judicial system. “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson, in a letter to Thomas Paine, 1789.
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Essay #53 –Principle of a Grand Jury indictment of capital crimes before a person may be held to account.
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Essay #54 – Principle of no passage, federal or state, of ex post facto laws of bills of attainder so that an individual is not held guilty of a crime and inflicted a punishment without a trial, to prevent abuse of the law.
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Essay #55 – Principle of republican and limited form of government, representative through American citizens voting in free and frequent elections. “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.
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Essay #56 – Principle of free, fair, independent elections involving preservation of the electoral college.
Principle of Free, Fair, Independent Elections Involving Preservation of the Electoral College by Tara Ross, Nationally Recognized Expert on the Electoral College, Author of Why We Need the Electoral College; The Indispensable Electoral College: How the Founders’ Plan Saves Our Country from Mob Rule; Prager University video, Do You Understand the Electoral College?
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Essay #57 – Further on principle of representative government only under authority of the American people.
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Essay #58 –Principle of establishing justice through the rule of law.
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Essay #59 – Principle of one nation under God.
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Essay #60 – 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. “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.
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Essay #61 – Principle of 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. 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.
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Essay #62 – Principle of civil over military authority – protection against corruption, foreign or domestic attempts to divide and destroy America. 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.
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Essay #63 – Principle of unity as Americans, preventing faction or division through election only of representatives who understand the United States Constitution and are willing to uphold it. “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.
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Essay #64 – Principle of strong defense capability to protect the United States against the danger and severity of treason.
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Essay #65 – Principle of appropriate role and purpose of government upon protecting the people from violence and fraud. “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.
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Essay #66 – Corruption and the Constitution: Principle of Constitutional Law and a Foundation of a Virtuous and Moral People
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Essay #67 – Principle of private property ownership of land to encourage self-reliance for maintaining and strengthening individual liberty and American independence.
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Essay #68 – Principle of individual free enterprise.
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Essay #69 – Principle of individual rights to life, liberty, and the pursuit of one’s own happiness, to make and reach one’s own goals. “That property will ever be unequal is certain. 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.” – Thomas Paine, Dissertation on First Principles of Government, 1795.
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Essay #70 – Principle of freedom of speech in a marketplace of ideas.
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Essay #71 – Principle of Money With Intrinsic Value and Standards of Weights and Measures, Printing Money. “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.
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Essay #72 – Principle of making personal contracts.
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Essay #73 – Principle of free market trade, industry, innovation and competition. “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.
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Essay #74 – Principle of Private Property Ownership To Sustain Liberty, Encourage Commerce and Independence. “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.” Property, an essay by James Madison, March 29, 1792.
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Essay #75 – Principle of freedom of the press. “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.
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Essay #76 – Principle of keeping the fruits of one’s own labor. “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.
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Essay #77 – Defending Liberty and Rights in Property Through the Fruits of One’s Own Labor
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Essay #78 – Principle of Freedom of Religion. “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.
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Essay #79 – Principle of freedom of assembly.
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Essay #80 – Principle of civil discourse to keep representative government, unhindered freedom of speech in the airing of grievances. “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.
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Essay #81 – Principle of a nation’s longevity upon consisting of public and private virtue. 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.
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Essay #82 – Principle of Constitutional Limits on the United States Government To Tax. “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.
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Essay #83 – Principle of freedom of association, undissolved and unweakened, either to associate or not associate and neither under coercion or force. “…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.
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Essay #84 – Principle of Free Thought and Speech. “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.
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Essay #85 – 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. 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, Speech, Compromises of the Constitution, June 20, 1788..
Essay #86 – Principle of secure borders.
Essay #87 – Principle of a United States Constitution prescribing within itself the only lawful methods of amendments by its keepers, the American people.
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Essay #88 – Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers.
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Essay #89 – Further on principle of free civil discourse and public debate without censorship – American government based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force. And what a Compliment does he pay to our Understandings, when he recommends measures in either alternative, impracticable in their Nature?…for if 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.
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Essay #90 – CONCLUSION
Guest Essayist: Christopher C. Burkett, Associate Professor of History and Political Science; Director, Ashbrook Scholar Program, Ashland University.
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Principle of constitutional limits on the United States government to spend taxes collected from the people with prompt payment of public debt.
First Principles of the American Founding
BlogEssay #1 – INTRODUCTION
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Essay #2 – Principle of government exists to secure liberty of the people rather than government existing to benefit itself. “We ought to consider, what is the end of government, before we determine which is the best form.” – John Adams, Thoughts on Government, in a letter in reply to William Hooper 1742-1790, North Carolina Continental Congress Delegate and John Penn 1740-1788, North Carolina Continental Congress Delegate, written spring 1776 in reply to NC delegates Hooper and Penn requesting Adams’ considerations on republican government for America upon gaining independence from Great Britain.
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Essay #3 – Principle of regard for history, order, and tradition.
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Essay #4 – Further on drawing from history, order and tradition in the formation of America’s founding documents such as the Declaration of Independence and United States Constitution of the 1700s. In 1639, a new colony, Connecticut, later a state gaining the motto “The Constitution State,” was founded by Reverends Thomas Hooker and John Davenport. Along with others, the Fundamental Orders of Connecticut were drafted, forming what is considered the first constitution in America. “…so to order and dispose of things that we the Inhabitants and Residents of Windsor, Hartford and Wethersfield are now cohabiting and dwelling in and upon the River of Connecticut and the lands thereunto adjoining; and well knowing where a people are gathered together the word of God requires that to maintain the peace and union of such a people there should be an orderly and decent Government established…General Assemblies or Courts…Court of Election…Magistrates…liberty of speech…Governor…promote the public good and peace of the same…maintain all lawful privileges of this Commonwealth; as also that all wholesome laws that are or shall be made by lawful authority here established, be duly executed…” – segments from the Fundamental Orders of Connecticut, January 1639.
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Essay #5 – Principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence.
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Essay #6 – Further on the principle of classical history discussed by the American founders for the purpose of applying its lessons toward a new and different governing system devoted to freedom and independence. In 1641, the Massachusetts Body of Liberties was written by a Puritan minister, Nathaniel Ward, considered the first bill of rights in America, continuing influences gained from those such as Magna Carta and others in the 1600s and into the 1700s for American law to come, and recognizing one is born with rights no government may take away. “The free fruition of such liberties, immunities and privileges as humanity, civility, and Christianity call for as due to every man in his place and proportion without impeachment and infringement hath ever been and ever will be the tranquility and stability of churches and commonwealths. And the denial or deprival thereof, the disturbance if not the ruin of both. We hold it therefore our duty and safety whilst we are about the further establishing of this government to collect and express all such freedoms as for present we foresee may concern us, and our posterity after us, and to ratify them with our solemn consent…” – With enumerated sections, in its original English spelling, the document was entitled, A Coppie of the Liberties of the Massachusets Collonie in New England, December 1641.
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Essay #7 – Classical history and significance of republican government as adopted by the United States and its influence during the American Revolutionary War.
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Essay #8 – Principle of constitutional restraints to prevent the undermining of interests of the entire Union. The Founders’ Join or Die efforts to protect the new Union of colonies to become a United States with state governments and one federal government with limits, resulted in Benjamin Franklin’s editorial cartoon running May 9, 1754 in his Pennsylvania Gazette, a picture of a snake cut in pieces representing the colonies. It served as a warning to join together or be destroyed by opponents of America. During tumultuous events of the French and Indian War, fighting the Stamp Act, and working toward independence from Britain, Americans agreed on protecting the Union.
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Essay #9 – Principle of natural law opposition to tyranny that binds a free people together and cannot disjoin them. “When the law is the will of the people, it will be uniform and coherent: but fluctuation, contradiction, and inconsistency of councils must be expected under those governments where every revolution in the ministry of a court produces one in the state. Such being the folly and pride of all ministers, that they ever pursue measures directly opposite to those of their predecessors…We shall neither be exposed to the necessary convulsions of elective monarchies, nor to the want of wisdom, fortitude, and virtue, to which hereditary succession is liable. In your hands it will be to perpetuate a prudent, active and just legislature, and which will never expire until you yourselves lose the virtues which give it existence…Our Union is now complete; our constitution composed, established, and approved. You are now the guardians of your own liberties.” – Samuel Adams, Speech on American Independence, August 1, 1776.
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Essay #10 – Further on principle of appropriate role and purpose of government in protecting liberty of the citizenry and the function of running their own government.
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Essay #11 – Principle of educating based on ethical, philosophical self-evident truths of good government, designed for a free people, recognized as important for acquiring civic virtue. “when the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. the exemption of the judges from that is quite dangerous enough. I know no safe depository of the ultimate powers of the society, but the people themselves: and if we think them not enlightened enough to exercise their controul with a wholsome discretion, the remedy is, not to take it from them, but to inform their discretion by education. this is the true corrective of abuses of constitutional power.” – Thomas Jefferson in a letter to William Charles Jarvis, Monticello, September 28, 1820.
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Essay #12 – Principle of educating based on ethical, philosophical self-evident truths of self-government and a good system of government for the country, designed for a free people, recognized as important for securing and continuing the blessings of liberty for future generations of Americans. The New England Primer, published in 1690, served as the main textbook through the nineteenth century. It was used to educate Americans on virtue, morals, and how to read.
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Essay #13 – Principle of civic duty, civic engagement. In a letter, John Adams wrote from Philadelphia to his wife, Abigail, April 26, 1777. Battle weary, Adams stated as he closed, “Posterity! You will never know, how much it cost the present Generation, to preserve your Freedom! I hope you will make a good Use of it.” Adams hoped future Americans would accept responsibility to preserve what was being established in his day. Declaration of Independence grievance: “He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.”
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Essay #14 – Principle of civic duty to petition their own government for a redress of grievances.
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Essay #15 – Principle of civic duty to rein in overreaching government. “They tell us, sir, that we are weak; unable to cope with so formidable an adversary. But when shall we be stronger? Will it be the next week, or the next year? Will it be when we are totally disarmed, and when a British guard shall be stationed in every house?” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).
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Essay #16 – Principle of citizenship, love of country. “The Unity of Government which constitutes you one people is also now dear to you. It is justly so; for it is a main Pillar in the Edifice of your real independence, the support of your tranquility at home; your peace abroad; of your safety; of your prosperity; of that very Liberty which you so highly prize. But as it is easy to foresee, that from different causes and from different quarters, much pains will be taken, many artifices employed, to weaken in your minds the conviction of this truth; as this is the point in your political fortress against which the batteries of internal and external enemies will be most constantly and actively (though often covertly and insidiously) directed, it is of infinite moment, that you should properly estimate the immense value of your national Union to your collective and individual happiness” – George Washington, Farewell Address, first published September 19, 1796 in Claypoole’s American Daily Advertiser and given the date September 17, 1796.
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Essay #17 – Principle of America’s national sovereignty. “That these are our grievances which we have thus laid before his majesty, with that freedom of language and sentiment which becomes a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate: Let those flatter who fear; it is not an American art. To give praise which is not due might be well from the venal, but would ill beseem those who are asserting the rights of human nature. They know, and will therefore say, that kings are the servants, not the proprietors of the people.” – Thomas Jefferson in his pamphlet, “A Summary View of the Rights of British America” July 1774, Williamsburg, Virginia.
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Essay #18 – Further on principle of America’s national sovereignty upon preventing loss of independence to foreign or global governments acting as with binding authority in attempts to undermine the United States.
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Essay #19 – Principle of peace through strength. “Shall we gather strength by irresolution and inaction? Shall we acquire the means of effectual resistance, by lying supinely on our backs, and hugging the delusive phantom of hope, until our enemies shall have bound us hand and foot?…It is in vain, sir, to extenuate the matter. Gentlemen may cry, Peace, Peace but there is no peace. The war is actually begun! The next gale that sweeps from the north will bring to our ears the clash of resounding arms! Our brethren are already in the field! Why stand we here idle? What is it that gentlemen wish? What would they have? Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, Almighty God! I know not what course others may take; but as for me, give me liberty or give me death!” – Patrick Henry, speech delivered at St. Johns Church, Richmond, Virginia, March 23, 1775 (“Give me liberty” quote was attributed to Patrick Henry, believed originally from William Wirt).
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Essay #20 – Principle of foreign policy based on a standard of freedom and independence. Thomas Paine, The American Crisis, December 19, 1776, Pamphlet 1, speech on “These are the times that try men’s souls” – not quitting in their fight for independence, writing how tyranny is not easily conquered, “Britain, with an army to enforce her tyranny, has declared that she has a right (not only to tax) but “to bind us in all cases whatsoever.”
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Essay #21 – Principle of Creator-endowed unalienable rights.
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Essay #22 – Principle of natural law as the foundation for constitutional law. “government by election and representation has its origin in the natural and eternal rights of man” – Thomas Paine, Dissertation on First Principles of Government, 1795.
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Essay #23 – Principle of appropriate role and purpose of government upon protection of unalienable rights, unchangeable, inherent, natural rights. The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power. – Alexander Hamilton in his pamphlet, The Farmer Refuted, February 23, 1775, New York.
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Essay #24 – Principle of a written United States Constitution that is the supreme law of the land, designed for the preservation of liberty for each generation of future Americans since its ratification. “…a voyage to plant the first colony in the northern parts of Virginia, do by these presents solemnly and mutually, in the presence of God, and one of another, covenant and combine our selves together into a civil body politic, for our better ordering and preservation and furtherance of the ends aforesaid; and by virtue hereof to enact, constitute, and frame such just and equal laws, ordinances, acts, constitutions and offices…” After high winds blew the ship off course landing the Pilgrims hundreds of miles off their destination, the first American document designed for self-governing, called the Mayflower Compact, was signed November 21, 1620 (November 11, old calendar) aboard the Mayflower ship at Cape Cod, what is now Massachusets. With an understanding, from experience about tyrannical rule, the early American settlers knew the importance of good governing and that a document to form it should be written for doing so themselves at the place they landed. Forty-one men signed the agreement that would help lay the framework for the new nation’s future Constitution.
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Essay #25 – Further on the principle of a written United States Constitution, a contract allowing, under strict limits, a government to run under the authority of the American people within the states. “There are in the productions of all of them, among many excellent things, some sentiments, however, that it will be difficult to reconcile to reason, experience, the constitution of human nature, or to the uniform testimony of the greatest statesmen, legislators, and philosophers of all enlightened nations, ancient and modern.” – John Adams in his 1787-1877 A Defense of the Constitution of Government of the United States of America, Letter I, Volume I, Preliminary Observations, Grosvenor-Square, October 4, 1786, part of a three-volume response sparked by a 1778 letter degrading American constitutions as not enough in republican form for the people to remain in control but were only repeating dictatorships America was trying to escape. Adams argues this is not the case.
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Essay #26 – Principle of self-governing. “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 every where, 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…Receive this Address with the same candor with which it is written; and may the spirit of wisdom and patriotism direct and distinguish your councils and your conduct.” – 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.
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Essay #27 – Principle of decision making by the majority within a constitutional framework.
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Essay #28 – Principle of law and order based on immutable, constant laws of nature and of nature’s God rather than the arbitrary will of any human ruler or mob rule. “I am an Enemy to Vice, and a Friend to Vertue. I am one of an extensive Charity, and a great Forgiver of private Injuries: A hearty Lover of the Clergy and all good Men, and a mortal Enemy to arbitrary Government and unlimited Power. I am naturally very jealous for the Rights and Liberties of my Country; and the least appearance of an Incroachment on those invaluable Priviledges, is apt to make my Blood boil exceedingly.” Silence Dogood, a pseudonym used by Benjamin Franklin, No. 2, April 16, 1722, New-England Courant.
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Essay #29 – Principle of constitutional law and a foundation of a virtuous and moral people.
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Essay #30 – Principle of one nation under God.
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Essay #31 – Principle of consent of the governed, that government without consent is overreaching its appropriate bounds, having moved from governing to tyranny. “…that the King with and by the authority of parliament, is able to make laws and statutes of sufficient force and validity to limit and bind the crown, and the descent, limitation, inheritance and government thereof” is founded on the principles of liberty and the British constitution: And he that would palm the doctrine of unlimited passive obedience and non-resistance upon mankind, and thereby or by any other means serve the cause of the Pretender, is not only a fool and a knave, but a rebel against common sense, as well as the laws of God, of Nature, and his Country…These are their bounds, which by God and nature are fixed, hitherto have they a right to come, and no further…The sum of my argument is, That civil government is of God…That this constitution is the most free one, and by far the best, now existing on earth: That by this constitution, every man in the dominion is a free man: That no parts of his Majesty’s dominions can be taxed without their consent: That every part has a right to be represented in the supreme or some subordinate legislature…” – James Otis, Rights of British Colonies Asserted and Proved, pamphlet, 1763.
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Essay #32 – Principle of decentralized government where power is on the local level with each individual American and the states. “Sir, I contemplate the abolition of the state constitutions as an event fatal to the liberties of America. These liberties will not be violently wrested from the people; they will be undermined and gradually consumed. On subjects of the kind we cannot be too critical…Will it not give occasion for an innumerable swarm of officers, to infest our country and consume our substance? People will be subject to impositions which they cannot support, and of which their complaints can never reach the government.” – Melancton Smith, Delegate, First Provincial Congress in New York; June 27, 1788 Notes during days beginning the New York Ratifying Convention.
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Essay #33 – Principle of limited government. “With respect to the words ‘general welfare,’ I have always regarded them as qualified by the detail of powers connected with them. To take them in a literal and unlimited sense would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.” – James Madison in a letter to James Roberts, Jr on April 20, 1831.
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Essay #34 – Principle of equality over equity, equal opportunities instead of guaranteed outcomes which cannot be guaranteed unless free market choices, competition, product development and improvements are extinguished.
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Essay #35 – Principle of meritocracy.
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Essay #36 – Principle of representative government under direction of the people rather than king rule, a principle applied by the American Founders in the United States Constitution. “But where says some is the King of America? I’ll tell you Friend, he reigns above, and doth not make havoc of mankind like the Royal Brute of Britain. Yet that we may not appear to be defective even in earthly honors, let a day be solemnly set apart for proclaiming the charter; let it be brought forth placed on the divine law, the word of God; let a crown be placed thereon, by which the world may know, that so far we approve of monarchy, that in America the law is king. For as in absolute governments the King is law, so in free countries the law ought to be King; and there ought to be no other. But lest any ill use should afterwards arise, let the crown at the conclusion of the ceremony be demolished, and scattered among the people whose right it is.” – Thomas Paine, Common Sense, February 14, 1776.
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Essay #37 – Principle of representative government over a hereditary system. “…for it is impossible to discover superiority of right in any family, by virtue of which hereditary government could begin… It is one step toward liberty, to perceive that hereditary government could not begin as an exclusive right in any family…With respect to the first of these heads, that of a family establishing itself with hereditary powers on its own authority independent of the nation, all men will concur in calling it despotism…It operates to preclude the consent of the succeeding generations, and the preclusion of consent is despotism.” – Thomas Paine, Dissertation on the First Principles of Government 1795.
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Essay #38 – Principle of free government and free society, entrusted to the hands of the American people, never confiscated by a tyrannical government system working to control rather than serve the citizenry.
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Essay #39 – Principle of separation of powers, involving checks and balances on those powers: maintaining separation for any power of office held in order to prevent development of tyranny, to prevent concentration where power is built up into one place which prevents checks or restraints by the people. The first grievance in the Declaration of Independence where the king refused to pass laws; The first of the seven Articles of the United States Constitution, Articles I, II, and III, show separate branches of governing and their powers including how they are chosen.
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Essay #40 – Principle of duty of the American people to continually observe government decisions and maintain checks on government power. “Where are your checks in this government? Your strongholds will be in the hands of your enemies. It is on a supposition that your American governors shall be honest, that all the good qualities of this government are founded; but its defective and imperfect construction puts it in their power to perpetrate the worst of mischiefs, should they be bad men; and, sir, would not all the world, from the eastern to the western hemisphere, blame our distracted folly in resting our rights upon the contingency of our rulers being good or bad? Show me that age and country where the rights and liberties of the people were placed on the sole chance of their rulers being good men, without a consequent loss of liberty! I say that the loss of that dearest privilege has ever followed, with absolute certainty, every such mad attempt…The most valuable end of government is the liberty of the inhabitants. No possible advantages can compensate for the loss of this privilege.” – Patrick Henry, speech before the Virginia Ratifying Convention, June 5, 1788.
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Essay #41 – Principle of a Legislative Branch, first within a system of government closest and as local to the people as possible with a limited federal government and strong local and state governing so that the people remain in control of their own government, with the Legislative Branch having been listed first in the Constitution for this purpose and to show it as the most important, then the Executive, then the Judiciary.
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Essay #42 – Principle of an Executive Branch, a strong executive but a role accountable to the people, the legislature, which seats a president and not a king, and the Executive Branch is controlled by the Legislative Branch which is closest to the people. The Executive Branch is listed second in the Constitution after the Legislative Branch.
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Essay #43 – Principle of a Judicial Branch, forming a Supreme Court and having the least amount of power of the three branches and no legislative power. The third branch of United States government, the Judicial Branch, is listed last in the Constitution after the Legislative and then Executive Branch.
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Essay #44 – Principle of establishing justice through rule of law – guarding against gradual erosion of law and order into chaos to break down America’s system of self-governing, 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.
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Essay #45 – Principle of rule of law, not of men; careful observance of the formation and execution of laws.
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Essay #46 – Further on the principle of rule of law: difference between a mandate and a law, Founders’ warnings against arbitrary laws or mandates handed out as having the force of law which dilute the meaning of true law and order that protect the liberty of the people.
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Essay #47 – Principle of justice for all.
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Essay #48 – Principle of equal under the law.
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Essay #49 – Principle of a political system with criminal and civil law, enacted by a legislative body, and accessible to all American citizens. “…it ought not to be overlooked, that such an additional accumulation of power in the judicial department would not only furnish pretexts for clamor against it, but might create a general dread of its influence, which could hardly fail to disturb the salutory effects of its ordinary functions…There is nothing, of which a free people are so apt to be jealous,, as of the existence of political functions, and political checks, in those, who are not appointed by, and mde directly responsible to themselves.” – Joseph Story, United States Supreme Court Justice appointed by James Madison, Commentaries on the Constitution of the United States: With A Preliminary Review of the Constitutional History of the Colonies and States, Before the Adoption of the Constitution. Published in 1833.
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Essay #50 – Principle of due process of law.
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Essay #51 – Principle of innocent of any crime until proven guilty.
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Essay #52 – Principle of freedom of a person under the protection of habeas corpus.
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Essay #53 – Principle of courts with justices who hold their offices during good behavior; importance of the phrase “during good behavior” for public servants. “Every man ought to be amenable for his conduct, and there are no persons so proper to complain of the public officers as the representatives of the people at large. The representatives of the people know the feelings of the people at large, and will be ready enough to make complaints. If this power were not provided, the consequences might be fatal. It will be not only the means of punishing misconduct but it will prevent misconduct. A man in public office who knows that there is no tribunal to punish him may be ready to deviate from his duty; but if he knows there is a tribunal for that purpose, although he may be a man of no principle, the very terror of punishment will perhaps deter him.” – James Iredell, U.S. Supreme Court Justice placed by George Washington, North Carolina Ratification Convention, July 24, 1788.
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Essay #54 – Principle of no unreasonable searches or seizures.
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Essay #55 – Principle of right to a speedy trial by a jury of peers, public, impartial, without cruel or unusual punishments, as part of the judicial system. “I consider [trial by jury] as the only anchor ever yet imagined by man, by which a government can be held to the principles of its constitution.” – Thomas Jefferson, in a letter to Thomas Paine, 1789.
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Essay #56 – Principle of a Grand Jury indictment of capital crimes before a person may be held to account.
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Essay #57 – Principle of no passage, federal or state, of ex post facto laws of bills of attainder so that an individual is not held guilty of a crime and inflicted a punishment without a trial, to prevent abuse of the law.
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Essay #58 – Principle of republican and limited form of government, representative through American citizens voting in free and frequent elections. “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.
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Essay #59 – Principle of free, fair, independent elections involving preservation of the electoral college.
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Essay #60 – Further on principle of representative government only under authority of the American people.
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Essay #61 – Principle of a United States Constitution prescribing within itself the only lawful methods of amendments by its keepers, the American people.
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Essay #62 – Upholding the Principle of Amending the United States Constitution by the American People, Its Rightful Keepers.
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Essay #63 – 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. “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.
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Essay #64 – Principle of 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. 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.
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Essay #65 – Principle of civil over military authority – protection against corruption, foreign or domestic attempts to divide and destroy America. 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.
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Essay #66 – Principle of unity as Americans, preventing faction or division through election only of representatives who understand the United States Constitution and are willing to uphold it. “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.
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Essay #67 – Principle of strong defense capability to protect the United States against the danger and severity of treason.
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Essay #68 – Principle of appropriate role and purpose of government upon protecting the people from violence and fraud. “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.
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Essay #69 – 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. 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, Speech, Compromises of the Constitution, June 20, 1788.
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Essay #70 – Principle of private property ownership of land to encourage self-reliance for maintaining and strengthening individual liberty and American independence.
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Essay #71 – Principle of secure borders.
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Essay #72 – Further on principle of private property ownership to protect liberty and encourage commerce, independence, personal growth and wealth without a requirement of royal or other position of gain. “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.” Property, an essay by James Madison, March 29, 1792.
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Essay #73 – Principle of individual rights to life, liberty, and the pursuit of one’s own happiness, to make and reach one’s own goals. “That property will ever be unequal is certain. 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.” – Thomas Paine, Dissertation on First Principles of Government, 1795.
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Essay #74 – Principle of individual free enterprise.
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Essay #75 – Principle of money with intrinsic value and standards of weights and measures, printing money. “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.
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Essay #76 – Principle of making personal contracts.
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Essay #77 – Principle of free market trade, industry, innovation and competition. “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.
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Essay #78 – Principle of keeping the fruits of one’s own labor. “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.
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Essay #79 – Principle of defending liberty and rights in property through the fruits of one’s own labor.
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Essay #80 – Principle of constitutional limits on the United States government to tax. “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.
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Essay #81 – Principle of freedom of speech in a marketplace of ideas.
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Essay #82 – Principle of free thought and speech. “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.
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Essay #83 – Principle of freedom of association, undissolved and unweakened, either to associate or not associate and neither under coercion nor force. “…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.
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Essay #84 – Principle of freedom of the press. “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.
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Essay #85 – Principle of freedom of assembly.
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Essay #86 – Principle of civil discourse to keep representative government, unhindered freedom of speech in the airing of grievances. “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.
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Essay #87 – Further on principle of free civil discourse and public debate without censorship – American government based on opportunities to discuss political and policy issues by reflection and choice rather than by accident and force. And what a Compliment does he pay to our Understandings, when he recommends measures in either alternative, impracticable in their Nature?…for if 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.
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Essay #88 – Principle of freedom of religion. “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.
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Essay #89 – Principle of a nation’s longevity upon consisting of public and private virtue. 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.
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Essay #90 – CONCLUSION
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Failures of Utopian Creation Experiments: America’s Founders and Their Warnings Against Attempts to Reinvent Human Nature
90 in 90 2022, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 89: Failures of Utopian Creation Experiments: America’s Founders and Their Warnings Against Attempts to Reinvent Human Nature – Guest Essayist: Chris Burkett, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesHistory furnishes plenty of examples, especially in the Nineteenth and Twentieth Centuries, of revolutions that attempted to create Utopian societies. From the French Revolution, which attempted to completely recreate society in every way in the name of equality, to the Russian Revolution, which attempted to recreate the human mind by erasing all concepts of the “private” and the “individual,” these Utopian experiments all have one thing in common: they either ignore or reject the idea of unchanging human nature, or claim that human nature is malleable or perfectible and can be reinvented. The American Founders would argue that this is why they have all failed, or will fail, in the end.
To be sure, the Founders understood from their own experiences and actions that change – and sometimes revolution – is necessary to bring about political, social, moral, and economic progress to make life better and more just for human beings. But the Founders had the prescience to see the danger of being too radical and abandoning all tradition and experience for the sake of some untested visionary idea of a perfect society. James Madison, in The Federalist No. 14, urged his fellow Americans to be open to the new – one might say “experimental” – aspects of the proposed United States Constitution. “Hearken not to the voice,” Madison wrote, “which petulantly tells you that the form of government recommended for your adoption is a novelty in the political world; that it has never yet had a place in the theories of the wildest projectors; that it rashly attempts what it is impossible to accomplish.” On the other hand, Madison acknowledged that there are some wholly new aspects of the proposed form of government. “But why,” he continued, “is the experiment of an extended republic to be rejected, merely because it may comprise what is new? Is it not the glory of the people of America, that, whilst they have paid a decent regard to the opinions of former times and other nations, they have not suffered a blind veneration for antiquity, for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?” To embolden his fellow citizens to attempt this experiment, Madison appealed to the example of the American Revolution itself:
Had no important step been taken by the leaders of the Revolution for which a precedent could not be discovered, no government established of which an exact model did not present itself, the people of the United States might, at this moment have been numbered among the melancholy victims of misguided councils, must at best have been laboring under the weight of some of those forms which have crushed the liberties of the rest of mankind. Happily for America, happily, we trust, for the whole human race, they pursued a new and more noble course.
Alexander Hamilton, in The Federalist No 31, also wrote on the need to combine a degree of boldness with prudence in revolutions. “Caution and investigation are a necessary armor against error and imposition,” Hamilton wrote.
But this untractableness may be carried too far, and may degenerate into obstinacy, perverseness, or disingenuity. … The moment we launch into conjectures about the usurpations of the federal government, we get into an unfathomable abyss, and fairly put ourselves out of the reach of all reasoning. Imagination may range at pleasure till it gets bewildered amidst the labyrinths of an enchanted castle, and knows not on which side to turn to extricate itself from the perplexities into which it has so rashly adventured.
Though the Founders understood the need for “experimentation” in order to make society better, they also understood that such experiments must be undertaken with a kind of prudence and judicious awareness of the realities and limitations imposed by human nature. In The Federalist No. 10, James Madison addressed those who believe that faction can be eliminated entirely from society, and reminds them that the causes of faction are rooted in human nature. To achieve a truly faction-free society, one must either eliminate or change human nature, which, in either case, would require a tyrannical government to accomplish. Madison reminded us again in The Federalist No. 51 that human nature should temper our expectations for establishing successful Utopian regimes. “But what is government itself,” Madison asked,” but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary.”
In The Federalist No. 37, Madison reflected on how the Constitutional Convention in 1787 combined political innovation tempered with prudence and a due regard for experience to create the proposed Constitution. The mode in which the Constitution was written – by a body of 55 delegates from twelve states over the course of three and a half months – was itself an experiment in constitution making. Madison observed, “The novelty of the undertaking immediately strikes us. … The most that the convention could do in such a situation, was to avoid the errors suggested by the past experience of other countries, as well as of our own; and to provide a convenient mode of rectifying their own errors, as future experiences may unfold them.” Madison conceded that the proposed Constitution was not perfect; nor would it establish a perfect form of government. But Madison argued against letting the perfect be the enemy of the good, and acknowledged that the imperfections arose, in part, from the realities of human nature and of imperfect human beings. As Madison wrote:
Would it be wonderful if, under the pressure of all these difficulties, the convention should have been forced into some deviations from that artificial structure and regular symmetry which an abstract view of the subject might lead an ingenious theorist to bestow on a Constitution planned in his closet or in his imagination? The real wonder is that so many difficulties should have been surmounted, and surmounted with a unanimity almost as unprecedented as it must have been unexpected. It is impossible for any man of candor to reflect on this circumstance without partaking of the astonishment. It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently and signally extended to our relief in the critical stages of the revolution.
Hamilton echoed this sentiment as well in The Federalist No 85. Hamilton addressed those who would reject the proposed Constitution because it was imperfect. “‘Why,’ say they, ‘should we adopt an imperfect thing? Why not amend it and make it perfect before it is irrevocably established?’” Hamilton’s response invoked, again, the realities of human nature:
I never expect to see a perfect work from imperfect man. The result of the deliberations of all collective bodies must necessarily be a compound, as well of the errors and prejudices, as of the good sense and wisdom, of the individuals of whom they are composed. The compacts which are to embrace thirteen distinct States in a common bond of amity and union, must as necessarily be a compromise of as many dissimilar interests and inclinations. How can perfection spring from such materials?
In summary, to paraphrase Hamilton from The Federalist No. 6, though it is reasonable for us to aim at progress through prudent change and experimentation, one must be far gone in Utopian speculations to believe that human beings can ever achieve a completely perfect society. History has vindicated the Founders’ advice on this through many examples of Utopian experiments that have resulted in tyranny, oppression, and death for many people.
America’s Founding Knowledge of Failed Utopian Ideologies: Establishing a U.S. Constitution Based on Tradition and Natural Rights to Prevent Tyranny
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 88: America’s Founding Knowledge of Failed Utopian Ideologies: Establishing a U.S. Constitution Based on Tradition and Natural Rights to Prevent Tyranny – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathUtopianism appears to be inbred in the human brain—the desire for the perfect life, however a person might define that. Parents tell children to “follow their dreams.” Adults, too, often follow suit. Examples abound, from the ‘49ers of the California Gold Rush, to the “drop-out” hippie communes of the 1960s, to current athletes and entertainers. From print publications to electronic media, the protagonists of many stories—fictional or true—are those who “followed the beat of their own drum.”
This human trait is admirable and is something which marks us as more intellectually complex than brute animals. Aristotelian understanding of “happiness”—eudaimonia—is that quest for a fulfilled and flourishing life, to be “truly human.” One might never fully attain that state, or, Aristotle advises, one might not fully comprehend it until one is close to death. Even the failure of such a quest, though, can teach valuable lessons. A person might end the journey to become a singer, once she realizes that the agitation among the neighborhood’s cats stem from the sounds she emits. Instead, perhaps a new dream to become a talent agent forms to motivate her. Looked at another way, even if her utopian vision fails completely, it likely affects only her and perhaps a few around her.
By contrast, utopianism at the level of societies is much more dangerous to human flourishing. At that scale, failure, such as the collapse of a polity, affects multitudes in a profoundly existential manner. The ship of state requires a calm hand at the wheel. Phronesis, the classical virtue of practical wisdom, must control, not utopian passion. The statesman must have the clear ability to make the moral and practical choices which conduce best to the well-being of the community.
Still, there lurks the unsatisfied yearning to achieve, or to return to, the perfect society. It is the psychological desire to return to a Garden of Eden and a state of perfect innocence. From a Neo-Platonic perspective, which influenced the writings of St. Augustine and other early Christians, this yearning might reflect the human soul’s longing to attain union with the ultimate Good, or God.
Writers since ancient times have dabbled in philosophic creation projects of ideal societies. Plato’s 4th-century B.C. Politeia (The Republic), his prescription for a government run by a “guardian class” of philosopher-kings, is an early example. Thomas More’s 1516 book Utopia about an ideal society dwelling on an idyllic island, is another. More recently, Karl Marx’s writings about the process of historical transition which ultimately would end class strife through the establishment of a classless, communist society, dazzled many acolytes. Common to these three particular works, it should be noted, was opposition, in some manner or another, to private property. Another commonality was a degree of hostility to the traditional nuclear family structure.
At least the first two of these works are not necessarily to be taken at face value. The revolutionary changes which would be necessary to establish Plato’s ideal republic conflict with fundamental philosophic views he expressed in other writings. Moreover, he was quite clear about the inevitability that the project would fail due to the passions which are part of human nature. His work is a warning at least as much as it is a blueprint.
More’s work is satirical through and through, from the book’s title (a play on two similar sounding Greek words meaning no place—Utopia—and perfect place—Eutopia), to the names of various places and persons within the work, to the customs of his island’s denizens. It was satire of English society, but also a warning about societies unmoored from Christian ethics.
Along with utopian philosophies have come utopian projects. The Plymouth Rock Colony of the Pilgrim Fathers in 1620 was organized initially along communist principles of land cultivation. The disastrous economic consequences from that brief, two-year experiment threatened the very existence of the colony. Fortunately, the misstep was soon corrected. A similar fate awaited Robert Owen’s utopian “socialist” colony New Harmony, Indiana, which turned from a prosperous religious settlement when sold to Owen in 1825 to an economic shambles by 1828. The religious predecessor had also held property in common, but within a tightly-knit religious community. Owen’s associates lacked any strong bonds of community. As one contemporary commentator noted, “There are only two ways of governing such an institution as a Community; it must be done either by law or by grace. Owen got a company together and abolished law, but did not establish grace; and so, necessarily, failed.” He might have added one additional approach, the use of relentless force.
Often, these utopian communities are driven by a fervent vision of a new type of society founded on religious principles. They seek to create an earthly community close to God. Besides the Pilgrims, the Shakers and other charismatic groups come to mind. Others, like the Owenite socialists are motivated by more secular ideologies. Sometimes, an odd brew of messianic zeal and political ideology is blended, as in the “apostolic socialism” of Jim Jones’s People’s Temple in Guyana. These groups eventually adapt their dogma to the complexities of human nature and the real-world challenges of social living, as the Pilgrims and the Latter Day Saints did. Or, they disintegrate, as was the fate of the Owenites and the Shakers. Tragically, some come to a violent end under the thrall of a toxic “prophet,” as did the unfortunates of the People’s Temple.
Another factor which contributes to the instability of utopian projects is the scale of the venture. The communities previously mentioned were comparatively small. The Aristotelian ranking of associations from the family to the clan to the polis encompasses ever greater numbers. As those numbers increase and the members’ relationships to each other become more distant, the bonds become looser. Human nature is, essentially, selfish. Self-interest is not necessarily bad. Killing an attacker to save one’s own life has long been recognized as the most fundamental of natural rights. However, another human characteristic, more developed than in lesser species, is altruism.
Altruism, and one’s willingness to incur burdens for the benefit of another, is most pronounced in regards to those whom we “know.” The bonds of love are strongest towards immediate family members. They are also present, but less intensely, towards the extended family. Beyond that lie the still significant bonds of friendship about which Plato and Aristotle mused at length. Aristotle considered the highest form of friendship that which is maintained not for what one might get out of it, but, instead, what is done for the benefit of the other. He also considered friendship as the key measure of proper self-government in the polis. At some point, however, the number of residents within the community might grow too big for the mutual interactions required to maintain friendship. As that number grows, the psychological tension between self-interest and true altruism inevitably favors the former.
For example, a “communist” approach to work and reward can succeed within a family, perhaps even an extended one of longstanding relationships. Trouble arises when the relationships are not familial. To eliminate this inequality of sentiment, utopian societies seek to undermine or abolish the family and other voluntary affinity groups, which itself is doomed to fail and simply accelerates the group’s collapse. A large utopian society, whose members are not bound together by religion or by rules derived from long-established customs which reflect the traditional ordering within stable communities, requires increasingly brutal force to maintain commitment to the utopian project. Pol Pot’s devilish regime in Cambodia nearly half a century ago is a notorious example of this, as memorialized in the chilling movie The Killing Fields.
No matter how intellectually promising and rationally organized the effort is, human nature and passions will derail the utopian project. Plato laid the problem at the feet of eros—passionate love and desire—which upends the controlled marriage and mating program his ultra-rational utopia required. Among the rulers, nepotism and greed manifest themselves. It is hardly shocking that Fidel Castro acquired a wealth of nearly $1 billion at the time, all the while exhorting the unfortunate subjects in his impoverished nation to sacrifice for la Revolución. The inevitable failings of the system set off a hunt for scapegoats, those wreckers who do not show the requisite zeal and who harbor counterrevolutionary or other heretical views.
Within societies which are not openly pursuing some political or religious utopia, there may nevertheless be strong currents of utopianism. In our time and place, the extreme emphasis on risk avoidance is a utopian quest. It has resulted in a bloated legal and administrative apparatus as smaller and more remote and dubious risks are targeted. Economic and social costs are ignored as a health and safety security state takes shape. Those who dissent from the secular millenarian orthodoxy are liable to be marginalized or cast aside like religious heretics. Individual rights of association, religion, providing for oneself and one’s family, and bodily autonomy are subject to the guesses and whims of unelected credentialed “experts.” Yet these measures, when pursued robotically for some ideal beyond what practical wisdom would advise, fail or produce only marginal benefits, often at great cost. Even if they are abandoned, the damage has occurred.
In a related manner, there has been a decades-long quixotic quest to create emotional placidity. While not socially harmful if done on an individual, voluntary basis, compelled “treatments” have been a favorite of ideologues to deal with dissenters. The Soviet Union was infamous for its psychological analyses steeped in Marxist utopianism and its use of political dissent as “red flags” of psychological “deviance.” But the problem festers closer to home, as well. From state-applied electric shock therapy and lobotomies in the past, to the modern approach of psychotropic drugs, a therapeutic totalitarianism has been spreading. Those who dissent, especially parents who balk at such drug use or at school “safe zone” counseling done behind their backs, are liable to find themselves ridiculed or worse.
The delegates to the Philadelphia Convention were educated in classic writings and western history. They were not naïfs about human nature or politics. They understood lessons from the failures of regimes and the dangers of utopian projects, as did their opponents in the debate over ratification. Moreover, their own experience from the Revolutionary War, the Articles of Confederation, and service in their state governments had inured them to utopian speculations. Illustrative of the skepticism is a letter Alexander Hamilton wrote even as the struggle for independence still hung in the balance in 1781, “there have been many false steps, many chimerical projects and utopian speculations.” He noted that the most experienced politicians were Loyalists. He was registering his complaint about the lack of political sophistication among his co-revolutionaries in the conduct of the war, the adoption of the Articles, and the drafting of state constitutions.
That is not to say that the supporters and opponents of the United States Constitution lacked political and philosophic bearings. Most had a sense of what they wished to achieve, set within a coherent broader philosophic framework. The historian Forrest McDonald, in his far-reaching and detailed analysis of the framing of the Constitution, classifies the delegates into two groups, “court-party nationalists” and “country-party republicans,” analogous to the British Tory and Whig parties, respectively. Among the best-known such nationalists were Washington, Hamilton, Benjamin Franklin, James Wilson, Gouverneur Morris, and Robert Morris. Among the notable republicans were Elbridge Gerry, George Mason, Luther Martin, and Edmund Randolph. Others were more difficult to label. McDonald places James Madison in between the two groups and somewhat harshly judges the latter “an ideologue in search of an ideology.” He claims that by temperament Madison thought matters through to the detail and preferred “the untried but theoretically appealing, as opposed to the imperfections of reality.” Yet, he also concedes Madison’s willingness to abandon politically untenable positions as needed.
A third group, whom McDonald considers arch-republican ideologues, did not attend for varied reasons. They included Thomas Jefferson, John Adams, Sam Adams, Richard Henry Lee, and Patrick Henry. Some of these outsiders and other opponents of the Constitution presented more consistently “principled” arguments, but it is always easier to attack someone’s work than to provide a comprehensive and workable alternative.
None of the groups at the convention had a majority. Moreover, they were not ideological in the modern sense of positing a single abstract moving cause for all human action in the private and public realms. The closest might be the idea that humans act from self-interest. But there was nothing like Marxist economic determinism or Freudian psychoanalysis or current Marxism-derived Critical Race Theory. The various broader theories of government delegates favored still resulted in differences which must have seemed intractable, at times. Some delegates left out of frustration that their ideas about the proper constitutional order were not sufficiently realized.
But most held on and difficult compromises were eventually reached. Even the matter which deadlocked the convention for weeks and threatened more than once to tear it apart, namely the structure of Congress and the mode of representation, ultimately was resolved mostly in favor of the small states through Roger Sherman’s Connecticut Compromise. So was the controversy over Congress’s powers. The small-state proposal of an enumeration of specific powers supplemented by an enabling clause was adopted over a more national position favored by Madison that Congress would have power to address all issues which affected the nation where individual states would be “incompetent to act.” The slavery question was generally avoided. The concept was simply euphemized, rather than expressed. Specific issues, such as the fugitive slave clause and the three/fifths clause to apportion representatives and direct taxes were borrowed from the Northwest Ordinance of 1787 and a failed amendment to the Articles of Confederation. Whatever might have been the hearts’ desires of various philosophically committed members, compromise prevailed. The result was a system which was partly federal and partly national, as Madison laid out the particulars in Number 39 of The Federalist.
As remarked in previous essays, the authors of The Federalist emphasized the influence of experience, not idealism, on the convention’s deliberations, and the process of compromise, not purity, which resulted in a plan suited to the practical demands of governing. Aside from Hamilton’s noted aphorism in Number 6 of The Federalist, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries,” the authors repeatedly drew on experience under the Articles of Confederation, the state constitutions, and earlier European and ancient systems. That was, of course, also what the convention had done. In Number 38, Madison mocked the variety and inconsistency of objections and their often vague and general nature. While his sarcasm disparages the constructive and systematic efforts of opponents such as the “Brutus” essays by New York’s Robert Yates, Madison’s specific examples illustrate the spirit of pragmatism at the convention. He declared “It is not necessary that the [Constitution] should be perfect: it is sufficient that the [Articles are] more imperfect.” In Number 41, he acknowledged, “…that the choice must always be made, if not of the lesser evil, at least the GREATER, not the PERFECT good; ….” [Emphasis in the original.]
Perhaps the best summation of the pragmatism which steered the delegates as they proceeded with their work was voiced by Benjamin Franklin. He rose on the day of the final vote and implored his colleagues, “Thus I consent, Sir, to this Constitution. Because I expect no better, and because I am not sure, that it is not the best. The opinions I have had of its errors, I sacrifice to the public good….I can not help expressing a wish that every member of the Convention who may still have objections to it, would with me, on this occasion doubt a little of his own infallibility, and to make manifest our unanimity, put his name to this instrument.”
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Trade and American Independence: Establishing a United States Constitution for Lasting Political and Economic Freedom
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, James C. Clinger Essay 87: Trade and American Independence: Establishing a United States Constitution for Lasting Political and Economic Freedom – Guest Essayist: James C. Clinger, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, James C. ClingerThe year 1776 was notable not only for the Declaration of Independence, but also for the publication of a notable work of scholarship that represented a dramatic change in not only the economic systems of the world but also the shape of the governmental arrangements of the United States, Britain, and other nations. An Inquiry into the Nature and Causes of the Wealth of Nations, by a Scottish academic, Adam Smith, was published at about the same time that the Continental Congress, thousands of miles away, considered a resolution to declare independence from Great Britain.[i]
Smith’s work is today largely considered an economic monograph extolling the virtues of capitalism, but in its own day its contribution was somewhat different. The word “capitalism” was not in wide use at that time. “Economics” was not considered an identifiable academic discipline or focus of study. Smith’s university teaching career was largely concerned with what was then called “natural philosophy.” In the Wealth of Nations, Smith suggested the free exchange of goods and services could promote not only material wealth, but also improve human well-being in a more general sense.
In making these arguments, Smith took the opportunity to attack human contrivances that thwarted free exchange. Slavery and colonialism were also criticized, and an extensive critique of the economic thinking and practices known as mercantilism became a central focus of the book. Mercantilism was a fundamental basis for colonial rule, and the opposition to mercantilist practices was part of the justification for the American Revolution. Similarly, the breakdown of mercantilism as a defensible basis for imperial control of territory led to British willingness to permit its colonies to gain their independence.
Mercantilism was an economic system that contended that national wealth was promoted by government interventions to encourage trade and investment in certain industries and enterprises. In particular, mercantilist advocates believed that the government should conserve national reserves of gold (and sometimes silver), which were used in international trade for goods and resources that could not be found within a nation. If a country controlled colonies, purchases could be made without using gold, thus sparing reserves that could be used for essential international transactions. The colonial power would dictate the permissible terms of trade in which its colonies could participate, usually compelling the colonies to trade only with the mother country or with other colonies within the same empire. Transactions with other countries would be forbidden or subject to very high tariffs.
Before the revolution, the American colonials chafed at the terms of trade dictated by the British. In 1774, the British imposed the Intolerable Acts as a punitive measure in response to the Boston Tea Party and other protests. The protests in the American colonies were largely demonstrations against some of the taxes (e.g., the Stamp Act) and the exclusive monopolies over many import enterprises given to the East India Company. That same year, the First Continental Congress enacted the Articles of Association as a trade boycott against the British. Many American colonial enterprises, including that owned by John Hancock, circumvented British trade restrictions by doing business with Dutch firms and other colonies. In the Declaration of Independence, two of the complaints prominently noted were the claims that the British were “cutting off our Trade with all parts of the world” and “imposing Taxes on us without our Consent.”[ii] These complaints were common among colonial people throughout the world, not only within the British Empire but within the colonies of all the imperial powers.
After the revolution, the Founders made strategic choices that affected the international trade practices that the new nation would follow. Tariffs and trade restrictions were still permissible, but procedural constraints limited their use. Within the United States Constitution, the Founders established a particular process by which taxes, including tariffs, would be enacted. Only Congress could approve taxes, and all money bills would originate in the House of Representatives, the only offices at that time filled through popular election.[iii] Foreign entanglements presumably could be minimized by the requirement that all treaties must be approved by a two-thirds vote of the present members of the Senate.[iv] The Senate was filled with representatives of the states originally chosen by the legislatures of the states. The requirement that a two-thirds vote of the members of the Senate consent to a treaty guaranteed that any treaty that took effect would have broad support among the various states. A measure that had the support of a simple majority of the general population would not be sufficient. A super-majority of the members of the representatives of states in the Senate was required. It is important to note that the equal representation of states in the Senate is one aspect of the Constitution that was regarded so essential that it could never be changed through constitutional amendment.[v]
British colonialism continued long after the American Revolution, but its economic underpinnings gradually eroded over time. Shortly after the end of the Napoleonic wars, Britain imposed a high tariff on imported agricultural products. This was reversed in 1846 with the repeal of the so-called “Corn Laws,” beginning a general trend toward freer international trade and away from protectionism.[vi] There was a short-term return to protectionist practices in the 1930s after the United States enacted the Smoot-Hawley Tariff Act, but Britain returned to a freer trade position after World War II.[vii]
Suffrage within Britain expanded throughout the nineteenth century, and the British found it harder philosophically to defend its dictating of the terms of trade with its colonies without granting them a voice in their own affairs. These denials of both economic and political freedoms seemed particularly unfair when the colonized peoples differed racially, ethnically, religiously, and culturally from the British. In fairness, it should be said that the British, more so than many imperial powers, did permit colonial peoples to elect the members of their representative assemblies and to retain the use of their native languages in schools and government offices.[viii] In general, the British colonies fared better economically than the colonies of many other European nations.[ix]
In terms of geographic territory, the British Empire reached its peak around 1920, but it had already loosened its control over many of its colonies and some, such as the United States, had already gained their independence. After World War II, many British colonies and protectorates separated from British control, even though most remained within the British Commonwealth. The Bretton Woods Accord established the American dollar as the primary currency to be used in international exchange. The British faced pressure from both its allies and from international organizations, such as the United Nations, to decolonize. New international economic institutions, such as the General Agreement on Tariffs and Trade and its successor organization, the World Trade Organization, encouraged trade liberalization. A few pieces of territory remain British colonies in far-flung parts of the globe, but the old empire has been dismantled as the economic and political basis for its existence has disappeared.
[i] Smith, Adam, and Edwin Cannan. The Wealth of Nations. New York, N.Y.: Bantam Classic, 2003.
[ii] Declaration of Independence
[iii] United States Constitution, Article I, Section 7
[iv] United States Constitution, Article 2, Section 2
[v] United States Constitution, Article V
[vi] O’Rourke, Kevin H. 2000. “British Trade Policy in the 19th Century: A Review Article.” European journal of Political Economy 16:: 829-842.
[vii] de Bromhead, Alan, Alan Fernihough, Markus Lampe, and Kevin Hjortshøj O’Rourke. 2019. “When Britain Turned Inward: The Impact of Interwar British Protection.” American Economic Review 109 (2): 325–52.
[viii] Lange, Matthew, Tay Jeong, and Charlotte Gaudreau. 2022. “A Tale of Two Empires: Models of Political Community in British and French Colonies.” Nations & Nationalism 28 (3): 972–89.
[ix] Lange, Matthew, James Mahoney, and Matthias vom Hau. 2006. “Colonialism and Development: A Comparative Analysis of Spanish and British Colonies.” American Journal of Sociology 111 (5): 1412–62.
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Prescience on Decline of the British Empire in Brutus No. VIII: Warnings That Influenced Formation of the United States Constitution
90 in 90 2022, Jay McConville, 6. Guest Constitutional Scholar Essayists, Blog Essay 86: Prescience on Decline of the British Empire in Brutus No. VIII: Warnings That Influenced Formation of the United States Constitution – Guest Essayist: Jay McConville, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Jay McConville, 13. Guest Constitutional Scholar Essayists, 90 Day Studies“I can scarcely contemplate a greater calamity that could befall this country, than to be loaded with a debt exceeding their ability ever to discharge.” (Anti-federalist Papers, Brutus No. VIII, 1789)[1]
Many Americans have a warm spot in their hearts for the British, by which they usually mean the quaint English people in the television shows they watch. For example, BritBox, the subscription service that features United Kingdom (UK) television shows, reported over 1 million U.S. subscribers by the first quarter of 2022, after only five years of operation.[2] Blessed with a rich history, a culture that often exudes sophistication, and a command of the language that (unfortunately) escapes most Americans, the UK is regarded highly by most Americans as our friend, our partner, and our kindred spirit in culture and world affairs. We share a language and history, of course, as the original U.S. states were British colonies. That early relationship was fraught with conflict, so our positive current alliance is better traced to our partnership fighting tyranny in World War I, II, and the Cold War. Many Americans also trace their lineage to the UK, or one of its former colonies or territories, so this tiny island nation is a favorite vacation spot for Americans. One British Airways survey found that “[t]hree in ten Americans said the UK is their favourite country and one in seven said they would move to Britain if they had the chance.”[3]
Yet the little nation that Americans love so much was once the most powerful, fierce, dominating, and wealthy empire on the earth. In fact, “by the end of the 19th century, the British Empire comprised nearly one-quarter of the world’s land surface and more than one-quarter of its total population.”[4] The number of current countries that were once part of its colonial empire are too numerous to list here, but included varying levels of control over much of Canada, Australia, New Zealand, India, Pakistan, Singapore, Kenya, Hong Kong, and South Africa just to name a few. The empire was built on economic adventurism, naval power, military domination, and colonial control. It developed over several hundred years, accelerating when the British led a coalition to defeat Napoleon at Waterloo in 1815. It was later victorious in both World War I and II, ending competition for European hegemony from their industrial rival Germany. Yet colonial revolts, including the independence of India in 1947, proved too much to sustain and by 1956, with the Suez crisis, the empire was in full collapse. With the return of Hong Kong to China in 1997, the once great empire was no more.
Why this occurred is the subject of many books, movies, and academic papers. Boiled down, however, the decline can be traced to the consequences of an extended empire, the costs of maintaining military forces in those lands, unsustainable debts, and the eventual loss of the privileged economic position of the British pound sterling. In summary, the UK had failed to notice or heed the warnings Brutus provided to the United States, encapsulated in the quote above.
Brutus, an anonymous American writer opposed to the adoption of the United States Constitution, was the nom de plume used by the author (or authors) of the Anti-federalist Papers. These papers paralleled the Federalist Papers, arguing against adoption, fearing the federal government was being set up as too powerful. While, as we know, the Constitution was eventually adopted, the Anti-federalists did much to influence its final form, and Brutus’ papers provide, even to this day, important reminders of the dangers of a too-powerful central government.
What do the Anti-federalist Papers of Brutus tell us about what happened to the British Empire, and how do those warnings apply to the United States today?
While the Anti-federalists had many concerns, the most germane to these questions are those articulated in Brutus No. VIII. That paper, published in 1789, continued the argument that the Constitution’s “necessary and proper” clause (Article I, Section 8) gave the federal government too much power. That article begins, “The Congress shall have the power” and then lists the enumerated powers of the federal government. The Anti-federalists believed that clause meant, as per Brutus in the earlier paper “Brutus No. VI” (1787), the federal government “had no other limitation than the discretion of the Congress” and this could, in the future, “destroy all the power of the state governments.”[5] Germane to these questions then, are the enumerated powers that give the national government the ability to raise, borrow, and spend money, and specifically to maintain standing military forces. Brutus warned that these unlimited powers threatened the economic future of the country and the sovereignty of the people. Such an exclusive power would amount to “unlimitted authority and controul over all the wealth and all the force of the union.” Standing armies, he argued, drain the nation’s resources, and since they held allegiance to the military command and not the Constitution, might, in a crisis, overthrow an elected government. He quotes a British Member of Parliament (“Mr. Pulteney”[6]) to summarize the concern: “I have always been, and always shall be against a standing army of any kind; to me it is a terrible thing, whether under that of a parliamentary, or any other designation; a standing army is still a standing army by whatever name it is called…” (Brutus No. VIII)
True, in the end, the British Empire was not brought down by a military coup, but instead by the economic burden of their global military responsibilities, including efforts to maintain their extended colonies and the cost of two world wars. These expenditures drained the treasury and turned the once powerful nation into a debtor – just as Brutus had warned America’s Founders could happen here.
Riding on its military might, the British Empire had at one time enjoyed economic dominance unparalleled in history. The British pound sterling was the world’s primary “reserve currency” in the 19th and first half of the 20th century. This gave the British huge economic advantage, as their currency was held in large quantities by governments and banks across the globe. Those who wished to conduct international trade had to buy British pounds to pay foreign entities, make international investments, and participate in other global economic activities. But a reserve currency is also called an “anchor” currency, as it is chosen due to the economic stability of the nation that issues it. That stability relies on the ability of that nation to pay its debts. Exhausted by war and the military cost of its empire, the pound sterling lost that status to the U.S. dollar in 1944, when allied leaders decided to link world currencies to the U.S. dollar. At the end of World War II, British debt had reached 200 percent of its Gross Domestic Product (GDP). This debt, worsened by poor economic policies and domestic spending, eventually led to Britain seeking debt relief from the International Monetary Fund in 1976. The WWII loans from the United States were only paid off in 2006.[7] After WWII, the United States, which had limited its military adventurism (with notable exceptions) up to that point, had eclipsed the British Empire.
Of note, while there was no coup, viewers of the TV show “The Crown” and history buffs also know that one – this time in 1968 and in response to the ongoing and precipitous decline of the empire – was nearly initiated by a group of British military, business, and political interests led by Lord Mountbatten[8], who had held multiple high positions in the British military, including first sea lord, admiral of the fleet, chief of the United Kingdom Defense Staff, and chairman of the Chiefs of Staff Committee[9]. While, thankfully, that did not happen, planning for it had commenced. By 1968 the Empire was through.
Fast forward to today, and we see that Brutus’ concern is once again important to consider here in the United States. America now holds the privileged position as the world’s top reserve currency. The U.S. dollar accounts for 59 percent of reserves held by central banks across the world, which is mostly held in cash or U.S. bonds. Nations across the globe use the U.S. dollar to conduct international financial activity, which accrues great benefit to our economy. Yet, the debt for those bonds exceeds $13 trillion[10] and the total U.S. National Debt stands now at nearly $31 trillion, or $243,000 per taxpayer and 123 percent of our GDP.[11]
It is hard to imagine anyone wants to follow the example of the British Empire, yet our military costs have continued to grow year after year, including massive expenditures for bases around the world, and most recently involvement in the Global War on Terror and conflicts in Iraq and Afghanistan. We are now, additionally, a primary funding source of Ukrainian resistance to Russian aggression, committing $54 billion.[12] The 2023 National Defense Authorization Act, which passed the House in July 2022, included a record $850 billion in total defense spending. (The Senate received the bill in August 2022.[13])
This is in addition to the high levels of domestic spending on such programs as Medicare, Medicaid, Social Security, various transfer programs, as well as funds for operating the departments of the federal government. The President’s budget request for 2023, still being considered by Congress, is over $5 trillion. That request includes over $300 billion in interest payments on the national debt alone, a burden that is rising rapidly and which will continue to do so for the foreseeable future. One Congressional Budget Office (CBO) report estimated that the U.S. taxpayer will pay over $8 trillion in interest on the debt between 2023 and 2032.[14] That is just interest, not principle, and equals over $25,000 for every one of America’s 325 million inhabitants.
The question is whether we can continue to maintain this level of debt spending, or whether, in the words of Brutus, Congress is well on the way to creating a “national debt, so large, as to exceed the ability of the country ever to sink.” (Brutus No. VIII). Should we continue down that path, the ability to meet this debt will eventually come into question. Should we, like the UK, damage the full faith and credit that the world holds in our ability to do so, and we lose our reserve currency dominance, the repercussions could be severe. It is something that we need to think carefully about.
In the words of Brutus, “I take it for granted, as an axiom in politic, that the people should never authorise their rulers to do any thing, which if done, would operate to their injury.”
Most Americans cannot imagine a massive decline in our world position, nor that this nation is at any risk from a coup or revolt against the federal government. One is reminded, however, of the wise words of Ronald Reagan, who, like Brutus, warned us that freedom and liberty are not the default for any nation. “Freedom is never more than one generation away from extinction. We didn’t pass it on to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”[15]
There have been many efforts to reign in the power of the Congress to borrow and spend, whether on domestic programs or military forces. The Balanced Budget Amendment to the Constitution, one that Brutus would no doubt support, is proposed year after year, and almost passed in 1995 and 1997, failing to achieve the required two-thirds majority by just one vote.[16] It failed again in 2011. The amendment threatens the ability of Congress to exercise the power that most concerned Brutus, and thus the very people who it controls will have to agree to it for it to pass. Power is seldom, if ever, relinquished voluntarily. So far, that has not happened, and spending continues apace.
Brutus was prescient in his warnings about the central government’s power to accrue debt. The British Empire provides an example of what can happen when a strong central government takes on military and foreign affairs commitments that make that debt unsustainable. So far, the United States has been able to handle its debts and remains an economic powerhouse. The question that is yet to be answered is whether we will maintain this position in the future, and what will happen if we do not.
Jay McConville is a military veteran, management professional, and active civic volunteer currently pursuing a Ph.D. in Public Policy and Administration at the L. Douglas Wilder School of Government and Public Affairs, Virginia Commonwealth University. Prior to beginning his doctoral studies, he held multiple key technology and management positions within the Aerospace and Defense industry, including twice as President and CEO. He served in the U.S. Army as an Intelligence Officer, and has also been active in civic and industry volunteer associations, including running for elected office, serving as a political party chairman, and serving multiple terms as President of both his industry association’s Washington DC Chapter and his local youth sports association. Today he serves on the Operating Board of Directors of Constituting America. He holds a Bachelor of Arts in Government from George Mason University, and a Master of Science in Strategic Intelligence from the Defense Intelligence College. Jay lives in Richmond with his wife Susan Ulsamer McConville. They have three children and three grandchildren, and are expecting a fourth in September.
[1] “Brutus VIII.” New York Journal 1789-06-15 : Rpt. in The Documentary History of the Ratification of the Constitution. Vol. 15. Ed. Gaspare J. Saladino and John P. Kaminski. Madison: Wisconsin Historical Society Press, 1984. 335-38. Print, as featured in ConSource: https://www.consource.org/document/brutus-viii-1789-6-15/
[2] Thiede, Joshua (2022). BritBox Eyes American Expansion, but Plans to Avoid Content Becoming ‘Transatlantic Pudding’. The Streamable (29 June 2022). https://thestreamable.com/news/britbox-eyes-american-expansion-but-plans-to-avoid-content-becoming-transatlantic-pudding
[3] Kitching, Chris (2014). Brits? You’re all uptight, obsessed by tea, the royals and family trees, say Americans… and no, we can’t understand Geordie accents either, DailyMail.com (5 October 2014). https://www.dailymail.co.uk/travel/travel_news/article-2781088/What-Americans-think-Britains-revealed-survey.html
[4] Augustyn, Adam ed. (n.d.) British Empire: Dominance and dominions. Britannica online https://www.britannica.com/place/British-Empire/Dominance-and-dominions
[5] “Brutus VI.” New York Journal 1789-06-12 : . Rpt. in The Documentary History of the Ratification of the Constitution. Vol. 15. Ed. Gaspare J. Saladino and John P. Kaminski. Madison: Wisconsin Historical Society Press, 1984. 110-17. Print., as quoted in https://consource.org/document/brutus-vi-1789-6-12/20191125163602/
[6] Actually, William Pulteney, a prominent British Member of Parliament who served in the early 1700’s.
[7] Wikipedia (n.d.) History of the British National Debt, retrieved from https://en.wikipedia.org/wiki/History_of_the_British_national_debt#cite_note-Ferguson,_Civilization,_p309-9
[8] BBC (2019). Lord Mountbatten: Did Prince Philip’s uncle attempt to lead a coup against Harold Wilson’s government? History Extra, BBC History Magazine and BBC History Revealed (29 November 2019). https://www.historyextra.com/period/20th-century/lord-mountbatten-did-prince-philip-uncle-attempt-lead-coup-harold-wilson-government-crown-true/
[9] Britannica (2022). Louis Mountbatten, 1st Earl Mountbatten, Britannica online, (21 June 2022). https://www.britannica.com/biography/Louis-Mountbatten-1st-Earl-Mountbatten
[10] Best, Richard (2022). How the U.S. dollar became the world’s reserve currency. Investopedia, (24 June 2022). https://www.investopedia.com/articles/forex-currencies/092316/how-us-dollar-became-worlds-reserve-currency.asp
[11] US Debt Clock.org, retrieved 18 August 2022 from https://usdebtclock.org/
[12] Hennis, Ade (2022). The U.S. has sent billions of dollars in aid to Ukraine – Breaking it all down. Market Realist (11 August 2022), https://marketrealist.com/p/how-much-money-has-the-us-sent-to-ukrainie/
[13] United States Congress, H.R.7900 – National Defense Authorization Act for Fiscal Year 2023, 117th Congress (2021-2022), retrieved 18 August 2022 from https://www.congress.gov/bill/117th-congress/house-bill/7900
[14] Interest costs on the national debt set to reach historic highs in the next decade, May 31, 2022, Peter G. Peterson Foundation, blog, retrieved from https://www.pgpf.org/blog/2022/05/interest-costs-on-the-national-debt-set-to-reach-historic-highs-in-the-next-decade
[15] Reagan.com (2018). Ronald Reagan Freedom Speech. Reagan.com, (31 August 2018), retrieved August 18, 2022 from https://www.reagan.com/ronald-reagan-freedom-speech
[16] Govtrack (n.d.). H.J.Res. 1 (104th): Balanced Budget Amendment, https://www.govtrack.us/congress/votes/104-1996/s158 and Istook, Ernest (2011). Considering a Balanced Budget Amendment: Lessons from History, Heritage Foundation, https://www.heritage.org/budget-and-spending/report/considering-balanced-budget-amendment-lessons-history
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Empire for Liberty: The American Founders on Curbing International Domination and Overreach
Thomas Bruscino, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 85: Empire for Liberty: The American Founders on Curbing International Domination and Overreach – Guest Essayist: Thomas Bruscino, Thomas Bruscino, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesRelating the American experience to the rise and fall of empires is trickier than it looks. Empires are complicated morally and historically—none more so than the British Empire—and the United States has its own complicated understanding of its relationship with empire.
“Empire” is no longer a morally neutral term. Most people these days believe “empire” is something universally or exclusively bad. And why wouldn’t people believe that? While it is true that the simplistic Marxist critique of imperialism as late-stage capitalism has had much to do with the bad rap for empires, that does not let empire off the hook. Part of the reason the Marxist view took hold was because most empires have been rapacious and exploitative, if not genocidal. Nowhere was that more evident than in the scramble for Africa, when European powers carved up the continent with little effect but suffering and despair for the local populations. Similar results of empire could be seen throughout the Americas and Asia.
However, not all empires are created equal. Even if we agree all empires are in general bad, some empires are way worse than others, just as some bad empires have had some positive effects. In Monty Python’s The Life of Brian, the Middle Eastern radicals sarcastically ask, “What have the Romans done for us?” The question eventually turns to: “Apart from the sanitation, the medicine, education, wine, public order, irrigation, roads, a fresh water system, and public health, [and peace], what have the Romans ever done for us?”
The line is funny because it is an unexpected contradiction in truths. But it could also be read as a commentary by British actors on the post British empire world. This is not the place to sort out the net positives and negatives of the British empire, nor to explain why the empire eroded over the course of the twentieth century. Here it is only to recognize that the British empire did help bring a measure of order and stability to the international system that certainly was not good for all, but was also more liberal and beneficial than the alternative empires of the time.
In the years around World War II, the British gave up their empire, leaving the question of who would provide order in the international system. During the Cold War, the United States and the Soviet Union competed over who would fill that gap. Interestingly, neither side called themselves an “empire.” In fact, both sides accused the other of imperialism.
The Soviet fall left the United States as the world’s great superpower, and responsible, in some measure, for providing order and stability lest some other, more pernicious power rise and impose a less favorable order on the world. Americans have struggled with what to do in that role. The country has not hesitated to intervene all around the world, often with lethal force, but it has consistently shied away from picking up an explicitly imperial mantle. Even when the United States joined the European and Japanese imperial scrambles around the turn of the twentieth century, Americans, including expansionists like Theodore Roosevelt, generally avoided the word “empire” for describing their foreign policy ambitions.
Frustrated by America’s inconsistency as a great power, some contemporary critics have encouraged the United States to embrace its role as an explicit empire for good. Eager to make their point, the critics have appealed to the language of the Founders, who often did use “empire” to describe the American experiment.
But that is too simple. The Founders used “empire” in specific ways. In many cases, they meant it roughly as a synonym for the country. Federalist 1 stated that the proposed Constitution was about, “the fate of an empire in many respects the most interesting in the world. It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”
When the Founders did use empire to describe the expansion of the United States, they added important modifiers. Thomas Jefferson’s was the most famous, “we should have such an empire for liberty as she has never surveyed since the creation: & I am persuaded no constitution was ever before so well calculated as ours for extensive empire & self-government.”
Note the common theme. This “most interesting” of empires, this “empire for liberty,” was unique because it was about self-government and freedom internally. If “empire for liberty” sounds now like an oxymoron, that is because it always was. It was an experiment, a new type of empire, built around trying to balance the necessary and inevitable tension between exerting great power and modeling freedom. To make it work, and to revise historian Walter McDougall’s framing, described in his book, Promised Land, Crusader State: The American Encounter with the World Since 1776, the promised land always required the crusader state, and crusader state had to remain the promised land.
It is the inheritance of that tenuous balance that has made subsequent Americans uncomfortable with the word “empire.” That is a good thing. The ugly empires of the nineteenth century clearly were not, and were not trying, to be promised lands of freedom. Without that constraint those empires overreached and fell.
The power and influence of the United States in the world has always strived to be something different. Whatever else that can be said about American expansion and intervention overseas, and there is plenty of room for critique, it has most often been constrained by Americans themselves. Whether through idealistic objectives set by governments in power, contentious domestic politics, or the vocal opposition of small minorities or brave lone voices, the United States has never expanded or intervened without the reminder that such activities threaten the soul of America itself. “She might become the dictatress of the world,” John Quincy Adams said in his famous address on July 4, 1821, but “She would be no longer the ruler of her own spirit.”
From Canada and Mexico, Cuba and the Philippines, Vietnam, and all the way to Afghanistan and Iraq, that reminder has always been there, embedded by the Founders in the American system, meant to constrain all-too-human ambitions of domination. If the United States is to avoid imperial overreach, its people must continue to remember that America’s “glory is not dominion, but liberty,” and always reach accordingly.
Thomas Bruscino is Associate Professor of History in the Department of Military Strategy, Planning, and Operations at the United States Army War College. He holds a Ph.D. in military history from Ohio University and has been a historian at the US Army Center of Military History in Washington, DC and the US Army Combat Studies Institute at Fort Leavenworth, and a professor at the US Army School of Advanced Military Studies. He is the author of A Nation Forged in War: How World War II Taught Americans to Get Along(University of Tennessee Press, 2010), and Out of Bounds: Transnational Sanctuary in Irregular Warfare (CSI Press, 2006), and numerous book chapters. His writings have appeared in the Claremont Review of Books, Army History, The New Criterion, Military Review, The Journal of Military History, White House Studies, War & Society, War in History, The Journal of America’s Military Past, Infinity Journal, Doublethink, Reviews in American History, Joint Force Quarterly, and Parameters.
The views and opinions presented are those of the author and do not necessarily represent those of the U.S. Army War College, the U.S. Army, or the Department of Defense.
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Guarding American Sovereignty: The United States Constitution and Its Protections Against World Government Control
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 84: Guarding American Sovereignty: The United States Constitution and Its Protections Against World Government Control – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerThe beauty of the American Constitution, as originally conceived, was that its authors recognized the inherent dangers of concentrated power at the highest levels of governance, and created a structure that both constrained the federal government’s powers while at the same time enumerating that the balance of those powers would be retained by state governments (and, by extension, local governments, since most local governments are creations of state governments), and the people.
The American Founders did this because they recognized that the bulk of public policy decision making was best left to levels of government that were closer to the people—those levels of government better understood problems in individual communities and local governments, and governance, were more easily controlled by citizens within those jurisdictions.
But in the wake of World War I, also known as “The Great War” or the “War to End All Wars, there came a call for greater international cooperation by governments, if not some kind of outright “global government” and out of those calls came, first, the League of Nations, and then, after the League of Nations failed to prevent World War II, the United Nations.
The First World War was commonly referred to as “The Great War” because of the war’s truly devastating scale—in terms of both lives lost, and people injured, as well as the impact it had on infrastructure. In fact, across the globe, you can still see the impact the war had on the surrounding environment. As a result, there was a call by leading nations to create some kind of instrument of global cooperation, and disarmament, to prevent just that kind of war from happening again: a “League of Nations.”
And the League of Nations met with limited success, in spite of the fact that the United States didn’t join even with President Woodrow Wilson’s advocacy for just such a league. But because the league failed to grasp geopolitical realities, such as what the sanctions on a post-World War I Germany might have on that nation’s ongoing politics, that body failed to prevent the Second World War from occurring.
It was during World War II that the concept of the United Nations was born—with the cooperation of the United States, Great Britain and the Soviet Union. In 1945, as the war was drawing to a close, the leaders of the Allied powers agreed that following the war’s end, that such a body would be developed. In June of 1945, just after Germany surrendered, the UN Charter was created. In October of 1945, two months after Japan surrendered, the Charter was made real.
To be clear, the United Nations is not a “world government” though there are some who would like it to be. Clark Eichelberger, a 20th century peace activist and advocate for both the League of Nations and the UN, wrote in the Annals of the American Academy of Political Science in 1949 that:
“World government has evolved and will evolve through the United Nations… the United Nations is the beginning of the process we need.”
But in the last seven decades, despite great efforts on the part of some to make a global government manifest, this has not occurred. The UN has no power to tax, no power to directly regulate. Any interference in inter-governmental disputes or in civil conflict can only come with either the agreement of local governments, or, in rare occasions, with the decision of voting members of the United Nations.
When it comes to involvement of the United States, the U.S. relationship with the UN is similar in most respects to how the deals are made with most foreign agreements, i.e., through the Constitution’s treaty powers. Essentially, from a constitutional perspective, the involvement of the U.S. in the UN is not dissimilar from other bilateral, between the U.S. and one nation, or multilateral, between the U.S. and more than one other nation, international agreements.
In fact, the only way for the United States to be “legally obligated” to cooperative policy decision making by the UN is for Congress to ratify whatever policy United States diplomats are considering signing or have signed. While those obligations are to our partners at the UN, the “legal” portion of it has to do with the agreement the U.S. government has with its people i.e., to only be bound, internationally, through ratified treaties.
This is because those international agreements, once ratified, become U.S. law, and enormously difficult to disentangle once put into place. Take the North American Free Trade Agreement (NAFTA), for example. Though not an agreement through the UN, it bound U.S. trade policy for decades, and became enormously difficult to reform, despite the negative impacts many in the United States were seeing.
In contrast, the Kyoto Protocols on climate, a climate policy agreement negotiated via the UN, was never ratified by the U.S. Senate. Many in the U.S. had deep and abiding concerns about the impact the policy obligations of Kyoto could potentially have on the U.S. economy. So, while the United States, under President Bill Clinton, signed the Kyoto Protocols, and there were many things that the Clinton administration could do to advance the goals of Kyoto (because of the size of the administrative/regulatory state and the powers that the Executive Branch has in terms of interpreting or re-interpreting existing federal environmental laws), the United States was not bound by the Kyoto protocols, as they would be within a treaty.
Central in all of this is the issue of “sovereignty.” By definition, when the United States, or any nation for that matter, enters into a treaty, they are giving up some measure of that nation’s sovereignty in favor of international cooperation usually as a result of the combination of negotiation and compromise.
As was demonstrated by the withdrawal of Great Britain from the European Union, multinational cooperative governance can have huge implications for individual member nations and their citizens—something British Prime Minister Margaret Thatcher had warned about when the EU was created. The further removed from the local population that government control becomes, the more onerous the burdens those governments can impose. With that comes a real difficulty in forming policies that reflect what local populations need and takes steps to protect those populations from harm.
It could be said that Prime Minister Thatcher was echoing the concerns raised by her predecessor in office, Winston Churchill, who, despite being instrumental in the creation of the UN, had concerns of his own. As reported by the New Republic in 1949:
“Churchill, as he confessed at The Hague in May, 1948, never accepted the concept of the United Nations. He feared the consequences of ‘a system where there was nothing between the supreme headquarters and the commanders of the different divisions and battalions.’ He wanted a world organization made up of representatives of regional associates.”
Thankfully, given protections that the U.S. Constitution affords, the people of the United States can rest assured that their sovereignty will be protected from a United Nations becoming the kind of multinational governmental behemoth that the EU became.
This is due, in no small measure, to the United States Constitution’s mandates about the Senate’s advise and consent role in terms of treaty ratification—if the foreign relations team of a U.S. president were to fail at their job or to be seriously compromised in some measure in terms of international negotiation, and as a result the U.S. were to give up a great deal of its independence, its sovereignty, it is left to the Senate to ensure that the interests of the people of the United States are protected, and that the agreement should not be ratified.
It is important to also note that Congress has a vital role to play in terms of internationally cooperative military activities. The UN has no standing army, another aspect of its existence that makes it fall short of a “world government.” It relies on its member nations in order for it to engage in any military action, usually under the auspices of “peacekeeping.”
The President is obligated to inform Congress of any military action that falls short of a “war”—and the President has 90 days before Congress must take action on whether to continue such operations.
In terms of ongoing “peacekeeping” operations, such as those that occurred in the Balkans during the 1990s after the collapse of the Yugoslavian government, Congress also has the power to give or deny funds to such efforts. If Congress doesn’t want U.S. military personnel involved in a specific peacekeeping mission, then Congress can specifically block the Executive Branch from spending funds on that mission.
In terms of the relationship between the United States and the United Nations, the obligations of the U.S. are not entirely different than any other treaty-governed relationship that the U.S. may be obligated to. The issues of sovereignty and compromise remain the same—and the relationship between the executive branch and the legislative branch in terms of the power to negotiate and the power to ratify are maintained. But, as always, it remains left to the people to ensure that both branches protect the interests of the American people in the long term.
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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United States Independence and Sovereignty: Cautions From America’s Founders Against Relinquishing Policy Decisions to International Organizations
90 in 90 2022, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 83: United States Independence and Sovereignty: Cautions From America’s Founders Against Relinquishing Policy Decisions to International Organizations – Guest Essayist: Chris Burkett, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesIn the previous essay we saw the causes in the Twentieth Century that led to the creation of international organizations such as the League of Nations and the United Nations Organization. In this essay we look at why the American Founders and Framers would counsel a prudent caution against unlimited commitment to and reliance on international organizations for dealing with foreign affairs.
First, the Founders would remind us that, in committing our national resources to promoting the good of the world community through international organizations, we must not lose sight of the fact that our government has a paramount obligation to secure the rights and vital interests of the United States and its citizens. These are what James Madison called “the permanent and aggregate interests of the community” in The Federalist No. 10. This fundamental obligation of our government is expressed in the Declaration of Independence, which claims “that to secure these rights” – the natural rights of life, liberty, and the pursuit of happiness, among others – “governments are instituted among men.” The Preamble to the United States Constitution reaffirms the fundamental purpose for which our government was designed; the American people ordained our Constitution to “secure the Blessings of Liberty to Ourselves and our Posterity.”[1] The American Founders would therefore caution against the view – as held by leaders such as Woodrow Wilson – that America’s highest obligation is to put our immediate interest aside in order to promote the good of the world community, an end that is most effectively achieved through our commitment to international organizations.
Some of the American Founders might have conceded the idea that international organizations could be useful to bring nations to a more common understanding of what justice among nations should be like. However, they would also caution that reliance on international organizations for this purpose could potentially lull us into abandoning the necessary discernment, vigilance, and prudence of determining the motives and measures of other nations – and possibly even the willingness to resort to force when necessary for our defense. A reliance on international organizations could beguile us into believing that all nations now behave rationally and can be trusted to resolve problems by dialogue alone. In other words, reliance on international organizations can give us the comfortable feeling that we have reached “the End of History,” and that modern nations have evolved beyond the motives and means of the Twentieth Century. However, plenty of real-world examples – the Russian invasion of Ukraine, for example – show the naivete of this view. Furthermore, we might be tempted to forget that The United Nations is made up of nations with governments or regimes that are fundamentally hostile to the principles of justice upon which the United States was founded. Alexander Hamilton, writing as Publius in The Federalist No. 6, reminds us that so long as human beings are capable of being “ambitious, vindictive, and rapacious,” and so long as governments are administered by human beings, there will always be nations inclined to go to war for a variety of reasons. As Hamilton writes:
The causes of hostility among nations are innumerable…Of this description are the love of power or the desire of pre-eminence and dominion – the jealousy of power, or the desire of equality and safety. There are others which have a more circumscribed though an equally operative influence within their spheres. Such are the rivalships and competitions of commerce between commercial nations. And there are others, not less numerous than either of the former, which take their origin entirely in private passions; in the attachments, enmities, interests, hopes, and fears of leading individuals in the communities of which they are members. Men of this class … have not scrupled to sacrifice the national tranquillity to personal advantage or personal gratification.
Even commercial republics and democracies – though founded on the principle of popular rather than monarchical rule – are prone to conflict amongst themselves. Alexander Hamilton might say, therefore, that “one must be far gone in utopian speculations” to assume that nations would actually put aside their own interests and govern cooperatively through the United Nations Organization for the good of the whole. Such an assumption would be dangerous and potentially destructive to the “permanent and aggregate interests” of the citizens of the United States.
The third concern the Founders might caution us about is that in committing the United States to the authority of international organizations, we might inadvertently relinquish our domestic sovereignty and our political independence from other nations. We might also lose our liberty as a nation to decide things like what our real obligations are to other nations, and when, how, and why we should act when dealing with foreign policy issues. These considerations are what led the U.S. Senate to vote against membership in the League of Nations in 1919.
This is a lesson President George Washington learned very well in the 1790s. The United States had signed a treaty of mutual defense with France in 1778; however, as the French Revolution turned into terror, the new French regime claimed that the treaty obligated the United States to assist them in their war against monarchical regimes throughout Europe. The treaty threatened to embroil the United States in a European war, effectively stripping the United States of its political independence and the liberty of choosing when, and when not, to go to war. From this example, Washington learned several lessons that should caution us against over-commitment to treaty-based international organizations today. “It is our true policy to steer clear of permanent alliances with any portion of the foreign world,” Washington wrote in his Farewell Address. “Taking care always to keep ourselves by suitable establishments on a respectable defensive posture, we may safely trust to temporary alliances for extraordinary emergencies.” Washington understood that maintaining our political independence and national liberty is vital so that “we may choose peace or war, as our interest, guided by justice, shall counsel.”
It is vital to maintain this political independence so that government may best choose how to fulfill its fundamental Constitutional duty of securing the rights and liberties of its citizens. This leads to a final word of caution regarding American commitment to international organizations. The American people, through their Constitution, have vested control over foreign affairs in Congress and the President. Congress, for example, is vested with the power of declaring war, and the President is vested with the authority to act as Commander in Chief of the country’s military forces. Because the American people have granted these powers, they have entrusted the American government with the responsibility of dealing with foreign policy issues for the security of our rights. According to the U.S. Constitution, however, the American people did not authorize our government to “delegate” that responsibility or those powers to another governing body, including international organizations – especially ones comprised of nations that abhor the very principles of justice for which the United States stands.
[1] Emphasis added.
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International Regimes, Events Leading To Creation of the United Nations, and Involvement of the United States
90 in 90 2022, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 82: International Regimes, Events Leading To Creation of the United Nations, and Involvement of the United States – Guest Essayist: Chris Burkett, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThe United Nations Organization was officially established in 1945, but its conception arose much earlier. In the early Twentieth Century there was a growing worldwide movement calling for an international organization to work out military and arms limitations agreements among the “civilized” nations of the world – namely, European nations.
In the aftermath of World War I, the League of Nations was finally established with the lofty goal of preserving world peace. In reality, its purpose was to bring together the “democratic” (i.e., “civilized” or “historically advanced”) nations to work together regarding territorial disputes and colonial possessions through negotiation rather than resorting to war. However, the United States Senate rejected membership in the League of Nations on the grounds that it would strip our nation of some degree of its domestic sovereignty and its independence in choosing foreign policy actions. The League limped ineffectively through the 1920s and met with several failures in the 1930s, including failure to prevent the Japanese invasion of Manchuria and the Italian war in Ethiopia. The League of Nations closed down with the outbreak of World War II in 1939 and officially disbanded in 1946.
Franklin Roosevelt, however, revived the idea of an organization of United Nations for the purpose of waging the war against the Axis Powers. President Roosevelt and British Prime Minister Winston Churchill drafted the text of the Declaration by United Nations in 1941, and the following year it was signed by the United States, the United Kingdom, the U.S.S.R, the Republic of China, and twenty-two other nations. The official UN Charter was approved by 51 member states in San Francisco in April 1945, just after Roosevelt’s death.
As with the League of Nations, the object of the United Nations was to allow countries to settle international disputes through discussion rather than war. Near the end of World War II, Roosevelt seemed to believe that such a forum would be useful and necessary to continue peaceful cooperation between the United States and the U.S.S.R. This was reaffirmed under President Harry Truman after World War II as tensions began to develop between the two countries and eventually developed into the Cold War. The Soviet Union, however, used the United Nations for political posturing against Western “capitalist” and “colonial” nations. Still, some Americans believed that the United Nations was a vital tool for allowing dialogue between the Western nations and the Soviet Union as a means to avoid nuclear conflict.
Many Americans were inclined to withdraw from foreign affairs after World War II, but the developing atomic threat from the Soviet Union and specter of sprawling communism inclined the United States back toward active engagement in world affairs through the United Nations. The United States joined the UNO because, unlike under the League of Nations, participation is UN policies is, for all intents and purposes, optional; this means that no nation permanently gives up its domestic sovereignty or its independence in choosing foreign policy actions. On the other hand, this means that the United Nations has no real “teeth” in terms of coercive power; member states comply or not from a kind of international “peer pressure” in order to save face. For example, the UN’s International Court of Justice issues judgments in international disputes in accordance with its understanding of international law, but its decisions are binding only on those nations that recognize its authority and jurisdiction. This is one cause of the general ineffectiveness of the United Nations in preventing conflict in its nearly eighty years of existence. Its lackluster record is also a result of the structure of the UN’s Security Council, which consists of fifteen member states – five permanent members (China, France, Russia, the United Kingdom, and the United States) and ten non-permanent members. Each of the five permanent member states has an absolute veto power and can immediately block any proposed policy (see Essay #20 on the defects of the United Provinces of the Netherlands).
The American Founders would have some words of caution about involving the United States in international organizations such as the League of Nations and the United Nations, which we will discuss in the next essay.
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The United States Constitution vs. the Regime of Mao Zedong: Opposite Systems of Government
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, David B. Kopel Essay 81: The United States Constitution vs the Regime of Mao Zedong: Opposite Systems of Government – Guest Essayist: David B. Kopel, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, David B. KopelIn 1949, after more than 20 years of fighting, the Chinese Communist Party overthrew the Republic of China. The party’s chairman, Mao Zedong, became dictator, and ruled until his death in 1976. Mao’s regime was the most murderous in history. His regime killed over 86 million people—more than Hitler and Stalin combined.
In 1966 Mao initiated “The Great Proletarian Cultural Revolution.” It started as a campaign against the more pragmatic elements of the Chinese Communist Party—such as leaders who a few years before had forced Mao to retreat from an agricultural collectivization program, the Great Leap Forward, that had caused the deadliest famine ever.
Incited by Mao, the Cultural Revolution began with the most privileged students—the children of the top communist party officials—at the top universities. They rioted, rampaged, and looted, first on-campus and then beyond. They started by killing or torturing teachers, and then moved on to the general public. Soon, the rage mobs of ultra-Maoists spread nationwide. Anyone’s home could be invaded and looted, and anyone could be murdered or tortured. The police were forbidden to interfere—or even to fight back when the mobs assaulted the police.
As the Cultural Revolution continued, things got even worse. The Cultural Revolution ended only when Mao died.
The Americans who created the United States Constitution could not know about the tyrants who would arise in the twentieth century. They did know of bad men who had tried to seize absolute power, such as Julius Caesar in the Roman Republic, or King James II of England. Yet the worst of English kings or Roman emperors were mild in comparison to the totalitarian Mao regime.
The American “people did not establish primarily a utility-maximizing constitution, but rather a tyranny-minimizing one.” Rebecca I. Brown, Accountability, Liberty, and the Constitution, 98 Columbia Law Review 531, 570 (1998). This essay describes some of the provisions of the U.S. Constitution that aim to thwart absolutism and totalitarianism. The information about China under Mao is based on David B. Kopel, The Party Commands the Gun: Mao Zedong’s Arms Policies and Mass Killings, Chapter 19.D.3 in Nicholas J. Johnson, David B. Kopel, George A. Mocsary, E. Gregory Wallace & Donald E. Kilmer, Firearms Law and the Second Amendment: Regulation, Rights and Policy (Aspen Publishers, 3d ed. 2022), pp. 1863-1966. Additional citations are available therein.
The Preamble to the Constitution states:
“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”
The principles and the results of the Mao regime were the opposite. For example, starting in 1972-73, the people were ordered to condemn the “reactionary” ideas of Confucius, such as “the people are the foundation of the state,” and “depositing riches in the people.” As described below, the Mao regime cultivated injustice, domestic violence, the welfare of the ruling class at the expense of the people, and the eradication of liberty. The regime did “provide for the common defense” in the sense that China was not invaded in 1949-76, other than in some border clashes with the Soviet Union.
The U.S. Constitution creates three distinct and independent branches of government:
“All legislative powers herein granted shall be vested in a Congress of the United States.” Art. I, §1.
“The executive power shall be vested in a President of the United States of America.” Art. II, §1.
“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish.” Art. III, §1
Under the U.S. Constitution, the three branches of government check and balance each other, as power is set against power. In a communist regime, there are no checks on the party’s will. All political power belongs to the party. Under Mao, “at the top, thirty to forty men made all the major decisions. Their power was personal, fluid, and dependent on their relations with Mao.” Andrew J. Nathan, Foreword, in Li Zhusui, The Private Life of Chairman Mao xi (Tai Hung-Chao trans. 1994).
“The House of Representatives shall be composed of members chosen every second year by the people of the several states.” Senators are to be elected every “six years” and the President every “four years.” Art. I §§2-3; Art. II §1.
There have been no elections since the Chinese Communist Party (CCP) seized power in 1949. Although the party calls the nation it rules the “People’s Republic of China,” the name is a lie. In a “republic” where “the people” rule, the people elect government officials. In the People’s Republic of China, the party rules because the military keeps the party in power. It is reasonable to infer that the CCP knows that if free elections were held, the CCP would lose.
Particular types of “power” are granted to each of the three branches of government. Arts. I §8, II §§2-3, III §2.
The three branches of United States government are granted certain powers by the people. The branches of government may exercise the particular powers expressly granted by the Constitution, as well as some incidental powers that are implied by the express grants. No branch of government, and not even the U.S. government as a whole, has all possible powers.
A communist regime claims unlimited power over everything. Mao acknowledged no legal limit on himself. The practical limit was the difficulty of one man imposing his absolute will on hundreds of millions. The Cultural Revolution was Mao’s method for eliminating everything and everyone that impeded his power.
Congress creates law by passing a “bill,” in compliance with certain procedures. Art. I §7.
The Mao regime was not based on law. As Mao told the very sympathetic American journalist Edgar Snow, “We don’t really know what is meant by law, because we have never paid any attention to it!” Li Cheng-Chung, The Question of Human Rights on China Mainland 12 (1979) (statement to Edgar Snow 1961).
During the 1950s, there were some efforts to create normal legal codes, but these were abandoned once the Great Leap Forward into full communism began in 1958. In contrast to the Hitler regime, which issued many statutes and regulations, the Mao system relied mainly on edicts from the communist leadership, the Party Center. There were many exhortative propaganda campaigns based on slogans.
The party-controlled national newspaper, the People’s Daily, was read to peasants and workers in frequent, mandatory political instruction meetings, which often consumed the rest of the day after work. In effect, the latest article in the People’s Daily was the official source for people to learn how to behave without getting in trouble with the authorities. As different factions within the CCP gained ascendency, the edicts changed frequently. So doing what had been mandatory on Monday could be punished on Friday.
“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” Art. I §9.
When a court issues a writ of habeas corpus, whoever is holding an individual prisoner must appear in court and prove to the court that the detention of the prisoner is lawful. In communist regimes, there is no recourse for individuals who are arbitrarily imprisoned or sent to slave labor camps.
Neither the federal government nor the states may enact any “ex post facto law.” Art. I §§9-10.
In other words, a criminal law cannot retrospectively punish an act that was lawful at the time it was committed. Just the opposite under Mao and all communist regimes. For example, in the 1956 Hundred Flowers period, people were encouraged to frankly express their views about perceived shortcomings of the CCP. Later, persons who had done so were imprisoned or sent to slave labor camps.
Likewise, during the first several months of the Cultural Revolution, young people from all over China were given free train tickets to see Chairman Mao speak at mass rallies at Tiananmen Square in Beijing. This was an exception to the normal rule that a person could not travel away from his or her village.
A few years later, when factional politics within the CCP had changed, 3.5 million people who had attended one of the 1966 rallies were given other free tickets: one-way transportation to forced labor in the countryside.
Throughout the Mao era, people were often punished for acts that had been lawful at the time, such as expressing non-communist political opinions in the 1930s.
“The President shall, at stated times, receive for his services a compensation, which shall neither be increased nor diminished during the period for which he shall have been elected; and he shall not receive within that period any other emolument from the United States, or any of them.” Art. II §1.
The President’s salary and expense accounts are set by Congress. Mao, in contrast, treated himself to whatever he wanted. In Beijing he lived in the former palace of the emperors, with his own private swimming pool and beach. He had fifty more fortified palaces around the country.
The special Giant Mountain (Jushan) farm supplied fine foods daily to the portly Mao and the others at apex of the CCP food chain. When Mao was away from Beijing, which was most of the time, daily airplanes delivered food from Jushan. The élite CCP leadership in the provinces had similar arrangements for special food, while the masses starved.
Mao enjoyed the company of many beautiful young concubines, procured for him by government employees.
During the Cultural Revolution, everyone had to buy a book of his sayings, Quotations from Chairman Mao Zedong, popularly known as “The Little Red Book.” Mao decided that he was entitled to royalties from all the forced book sales, and he became the first millionaire in Communist China.
As explained by a former vice-president of communist Yugoslavia, all communist governments eventually replace the old wealthy class with a new class of reactionary despots. Property that was nationalized in the name of “the people” becomes the property of the most privileged at the top of the inner party, the “all-powerful exploiters and masters.” Milovan Dijilas, New Class: An Analysis of the Communist System 47 (1957). The same point is made in George Orwell’s book Animal Farm (1945).
“The President, Vice President, and all civil officers of the United States shall be removed from office on impeachment for, and conviction of, treason, bribery, or other high crimes and misdemeanors.” Art. II §4.
The constitutional system of elections makes a president removable by the people every four years. In addition, a president may be removed during his term if he is impeached by the House and then convicted by the Senate. In 1974, President Richard Nixon resigned when facing certain impeachment and conviction because of his crimes, including the coverup of an attempted burglary, directed by Nixon’s staff, of the Democratic National Committee office at the Watergate office complex.
But there was no way to remove Mao, even when, as in the Great Leap Forward or the Cultural Revolution, the majority of the people, and even the majority of the CCP elite, thought that he was leading the nation into ruin. Like a bad Roman Emperor, Mao could only be removed by force.
In 1971, Mao began plotting to get rid of defense minister Lin Biao. Lin’s son began organizing a coup against Mao. The plan was to bomb Mao’s train in September 1971, when he would be returning from a trip to southern China to shore up support from the army generals there for Mao’s plan to remove Lin.
But Mao, knowing he was widely hated, often changed his travel plans at the last minute, as a security precaution. This time, the last-minute change saved his life. Lin Biao and his family tried to flee to Mongolia, dying in a plane crash on September 13, 1971.
“The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish. The judges, both of the Supreme and inferior courts, shall hold their offices during good behavior, and shall, at stated times, receive for their services a compensation, which shall not be diminished during their continuance in office.” Art. III §1.
“The trial of all crimes, except in cases of impeachment, shall be by jury.” Art. III §3.
“In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor; and to have the assistance of counsel for his defense.” Amendment VI.
The U.S. Constitution guarantees the right to jury trial, with fair trial procedures, such as the right to counsel, public proceedings, and the right to cross-examine witnesses. Federal judges hold their positions until they choose to retire, and they cannot be removed for political reasons.
Under Mao, “judicial reform” purged judicial officers and ensured that a puppet judiciary would never err on the side of lenience against dissidents. Courts ceased to exist as independent finders of fact. They became administrative processing units for predetermined sentences. Entirely under the thumb of the CCP, judges merely pronounced the severe sentences that CCP officials had already decided. In cases where the law was not clear, judges were required to follow the Central Party line. According to the CCP official newspaper, People’s Daily, the accused were “presumed to be guilty. . . . Giving the accused the benefit of the doubt is a bourgeois weakness.”
“Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people peaceably to assemble and to petition the government for a redress of grievances.” Amendment I.
No government-established religion, and free exercise of religion
As soon as the communists seized power, they began suppressing some religious organizations and bringing the rest under state control. Religious organizations could exist only as entities subordinate to and directed by the CCP. Soon, the government began to attempt to exterminate religion entirely. While atheism was the official communist belief, the party recognized that religion made people harder to control, as the faithful recognized a higher power than the CCP.
Today’s China is little different. Tibetan Buddhists, Uighur Muslims, and Falun Gong face the worst persecution. Christian denominations are allowed to exist only as state-controlled entities.
Mao despised religion. When Tibet’s Dalai Lama visited Mao in Beijing in 1954, Mao told him, “I understand you well. But of course, religion is poison. It has two great defects: It undermines the race, and secondly it retards the progress of the country. Tibet and Mongolia have both been poisoned by it.” Dalai Lama, My Land and My People 117-18 (2006).
Mao always wanted to be the center of attention. He didn’t like the Chinese national anthem, March of the Volunteers, which had been adopted by the CCP in 1949. It had originally been a song for people of all political persuasions who fought the Japanese invasion of China of 1933-45. During the Cultural Revolution, Mao put the national anthem author in prison, where he died. Although Mao did not formally change the national anthem, for almost every occasion that the national anthem would be played, Mao made the state media (the only media) instead play a song about him, The East Is Red.
“The East Is Red (Dongfang hong):
From China comes Mao Zedong.
He strives for the people’s happiness,
Hurrah, he is the people’s great saviour!
Chairman Mao loves the people,
He is our guide to building a new China.
Hurrah, lead us forward!”
For schoolchildren, a soon-to-be pervasive new song was composed in 1966: “Father is dear, mother is dear, But not as dear as Chairman Mao.”
Under German regime of the National Socialist German Workers Party (“Nazi” for short), people were required to say “Heil Hitler” rather than “Good morning” or “Hello.” The same became true with “Long Live Chairman Mao”—literally, “Chairman Mao ten thousand years” (Mao zhuxi wansui). One man was executed for saying that Chairman Mao would not actually live ten thousand years.
With Mao’s blessing, the military (the “People’s Liberation Army,” PLA) began establishing a new religion for China. Starting in the latter part of 1967, most nonwork time was taken up by mandatory nightly assemblies where people had to discuss their personal behavior in light of Mao Zedong Thought. Then came the 1968-69 campaign of “Three Loyalties” and “Four Boundless Loves” that everyone was supposed to feel for Chairman Mao.
Statues and shrines of Mao were erected everywhere. Busts or pictures of Mao were mandatory home religious items.
Although there was good money to be made, painters often declined the opportunity to paint a Mao icon, since the artist would be scrutinized and punished for the slightest inadvertent sign of insufficient veneration.
Upon arising in the morning, everyone had to face their home Mao shrine and “ask for instructions.” The day ended with “reporting back in the evening.” Mao replaced the “kitchen god” of Chinese folk culture. In other aspects Mao was portrayed as the sun god.
Life was structured around Mao and his words. Before every meal, people had to say grace: “Long live Chairman Mao and the Chinese Communist Party.”
Maoist life encompassed the body as well as the mind. Instead of normal sports, the new exercise routine was “quotation gymnastics”—a set of group exercises in which participants shouted Mao quotes related to the motions. For example, in the third set of exercises, the leader would yell “political power grows out of the barrel of a gun.” The exercisers would make nine thrusting and stabbing motions with imaginary bayonets.
Even more common were “loyalty dances,” in which individuals or groups stretched their arms to show their “boundless hot love” for Mao, sometimes worshipping him as the sun. The PLA enforcers labeled any nonparticipant in the Mao rites as an “active counterrevolutionary.”
People began reporting miracles such as healing of the sick and attributing them to Mao. Communist temples were erected, based on the historic model of ancestral temples. When buying a Mao item in a store, one could not use the common word for buying, mai; instead one would use the polite verb actress Jiang Qing, previously reserved for the purchase of religious items.
Freedom of speech and freedom of the press
When the communists were fighting to overthrow the Republic, they promised freedom of speech for everyone. As soon the Communists seized power, all nongovernment newspapers were closed.
All radios were confiscated, so no one could hear news from the outside world. The confiscation of radio transmitters ensured that people could not communicate with each other at a distance.
All mail was surveilled, and the contents were put in the secret files that the government kept on everyone.
Once people saw what communist rule was like, many people burned their book collections, because possession of a book—even an apolitical book—that was not based on communist ideology might result in the owner being labeled a “counterrevolutionary” and sent to a slave labor camp.
During the Cultural Revolution, the rage mobs pillaged libraries and burned books in huge outdoor bonfires, reminiscent of similar book burnings in Nazi Germany. The Nazi book burners mainly targeted books by Jewish authors, but Mao’s mobs were more ambitious. Any book that was not communist—such as books of ancient poetry—was put to the torch. Many rare historic manuscripts were destroyed.
Mao’s fourth wife, the former actress Jiang Qing, took a special interest in the performing arts. In China, opera had always been entertainment for the masses (as it was in the United States in the nineteenth century) and not solely for a highly educated audience (as it is in the U.S. today). Madame Mao banned all classical works of performing art. The only works that could be performed were post-1949 “model” pieces of crude communist propaganda. That amounted to five operas, two ballets, and one symphony. In the privacy of her palaces, Madame Mao enjoyed a much broader selection of entertainment, including private screenings of Western movies.
During the Cultural Revolution, simply being educated, or an intellectual, or able to speak a foreign language could be cause enough to be killed, tortured, or put into forced labor.
From about March 1968 to April 1969, even the most mundane conversation had to be centered on Mao. If a peasant walked into a store, the clerk was supposed to say “keep a firm hold on grain and cotton production,” and the peasant would reply “strive for even greater bumper crops.” If the customer was a student, the clerk would say “read Chairman Mao’s books,” and the student would answer “heed Chairman Mao’s words.” As one historian observes, “The Cultural Revolution is perhaps the time in the twentieth century when language was most separated from meaning. . . . If you do not mean what you say, because what you say has no meaning beyond the immediate present, then it is impossible to imbue language with any system of values. . . . This led to the overall moral nullity of the Cultural Revolution during its most manic phase.” Rana Mitter, A Bitter Revolution: China’s Struggle with the Modern World 209 (2004).
Or as George Orwell wrote about a fictional totalitarian government very similar to communism, “The intention was to make speech, and especially speech on any subject not ideologically neutral, as nearly as possible independent of consciousness.” George Orwell, Appendix: The Principles of Newspeak, in 1984 (1990) (1949).
Right to petition the government for redress of grievances
Of course there was no such right in Mao’s China, especially during the Cultural Revolution. Sending the government a critical petition would lead to every signer being imprisoned, tortured, sent to slave labor camp, or executed.
At the beginning of the Cultural Revolution, Wang Rongfen, who was studying German at the Foreign Languages Institute, observed the similarities between Mao’s first Cultural Revolution rally for a crowd at Tiananmen Square and Hitler Nuremberg rallies. She sent Chairman Mao a letter: “the Cultural Revolution is not a mass movement. It is one man with a gun manipulating the people.” He sent her to prison for life. In prison, she was manacled full-time, and the manacles bore points to dig into her flesh. She had to roll on the floor to eat. She was released in 1979, three years after Mao’s death, with her spirit unbroken.
Right of Assembly
The textual right of assembly is related to the implied right of association. As the U.S. Supreme Court has recognized, the right of association is implied by the other First Amendment rights, and is necessary to their exercise.
Under the CCP, no associations could exist except those under government control. No assemblies on political matters were allowed, except those demanded by the government.
But when Premier Zhou Enlai died in January 1976, huge, spontaneous, and unauthorized crowds assembled to mourn him. The crowds considered him relatively less totalitarian and oppressive than Mao. Unlike the Tiananmen rallies of the early Cultural Revolution, which originated from the top down, the crowds that gathered to mourn Zhou expressed people power. “The country had not witnessed such an outpouring of popular sentiment since before the communists came to power in 1949.” Li Zhusui, The Private Life of Chairman Mao 611 (Tai Hung-Chao trans. 1994).
While there were demonstrations at over 200 locations throughout the country, the flashpoint was in Beijing’s Tiananmen Square, which saw the largest spontaneous demonstration ever in China. On April 4, Tomb-Sweeping Day (Qing Ming), a traditional day for honoring one’s ancestors, an immense crowd gathered at the Monument to the People’s Martyrs in Tiananmen Square. Erected in 1959, the monument honored Chinese revolutionary martyrs from 1840 onward.
That night, the Tiananmen assembly was attacked by the Capital Militia Command Post (a/k/a the “Cudgel Corps”). According to one report, it later took hundreds of workers to scrub off all the blood.
“A well-regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.” Amendment II.
The Second Amendment ensures that the government will never have a monopoly of force. As Americans knew from recent history in Europe and from ancient history, people who were first disarmed were often tyrannized later.
The Chinese Communist Party was aware of similar lessons of history. In a 1938 speech, Mao explained, “Our principle is that the Party commands the gun, and the gun must never be allowed to command the Party. . . . According to the Marxist theory of the state, the army is the chief component of state power. Whoever wants to seize and retain state power must have a strong army.” Problems of War and Strategy (Nov. 6, 1938).
In 1949, one of the new regime’s “first acts” was “to confiscate weapons.” Jung Chang & Jon Halliday, Mao: The Unknown Story 424 (2005). Homes were inspected to “search for forbidden items, from weapons to radios.” Frank Dikötter, The Tragedy of Liberation: A History of the Chinese Revolution 1945-1957, at 45-46 (2013).
By ensuring that all the people could be armed, the Second Amendment aimed to ensure that the militia would be drawn from all people. If the government were allowed to disarm people, then instead of a general militia of the people, there would be a “select militia” of the government’s favorites and toadies. At the Virginia Convention for ratifying the U.S. Constitution, George Mason had warned that a select militia would “have no fellow-feeling for the people.” (June 14, 1788).
As the U.S. Supreme Court noted, in England, the despotic Stuart kings in the seventeenth century had used “select militias loyal to them to suppress political dissidents, in part by disarming their opponents.” District of Columbia v. Heller, 554 U.S. 570, 592 (2008). Further, said the Court, the Second Amendment was enacted in part to assuage fears that the U.S. government “would disarm the people in order to impose rule through a standing army or select militia.” Id. at 588.
Under Mao, a select militia was the instrument for forcing most of the population into de facto slavery. In the 1958-62 Great Leap Forward, the select militia became the instrument that caused the deaths of over forty million people from famine.
In a nation of over 600 million people, the select militia comprised fewer than 2 percent of the population. Unlike in the American system, militia arms were not personally owned but were usually centrally stored and guarded.
According to a political refugee interviewed in Hong Kong in the 1950s, in a farm commune of 15,000 families, there would be about 1,500 militiamen, chosen from the politically correct, who would have rifles. Of these there was “a further selection of 150 super-reliable men whose rifles are always loaded.” Suzanne Labin, The Anthill: The Human Condition in Communist China 104 (Edward Fitzgerald trans., Praeger 1960) (1st pub. in France as La Condition Humaine en Chine Communiste (1959)). “Otherwise ammunition is kept at a central armoury guarded day and night by special police armed with machine-guns. As an extra precaution the personnel of this guard is changed every two months.” Id. A hundred and fifty always-armed males could control 15,000 families.
“They would turn out to be crucial in enforcing discipline, not only during the frenzy to establish communes, but throughout the years of famine that lay ahead.” Frank Dikötter, Mao’s Great Famine: The History of China’s Most Devastating Catastrophe, 1958-1962, at 182 (2010). “[L]ocal militia were a critical ingredient in the CCP’s consolidation of power in the countryside.” Elizabeth J. Perry, Patrolling the Revolution: Worker Militias, Citizenship, and the Modern Chinese State 182 (2007).
“The militia movement and a small corps of trained fighters brought military organization to every commune. All over China farmers were roused from sleep at dawn at the sound of a bugle and filed into the canteen for a quick bowl of watery rice gruel. Whistles were blown to gather the workforce, which moved in military step to the fields. . . . Party activists, local cadres and the militia enforced discipline, sometimes punishing underachievers with beatings.”
Dikötter, Famine, at 50. “Militiamen spearheaded the countless mobilization campaigns that were the hallmark of Mao’s rule. They enforced universal participation by all members of the factory or village, dragged out or designated targets of struggle [persons targeted for persecution], and monitored mass meetings.” Perry, at 191.
A case study of the remote village of Da Fo, located on the North China Plain, details the operation of the select militia. There, guns had been confiscated in 1951 (later than the general confiscation in 1949, perhaps because of the village’s isolation). Over the course of the war against the Japanese invasion and then the final phase of the civil war (1945-49), the high-quality leaders of the Da Fo communist militia had been moved elsewhere, to positions of greater responsibility. The militiamen left behind were the dregs of society. “Villagers remember them as poorly endowed, uneducated, quick-tempered, perfidious hustlers and ruffians who more often than not operated in an arbitrary and brutal political manner in the name of the Communist Party.” Ralph A. Thaxton, Jr., Catastrophe and Contention in Rural China: Mao’s Great Leap Forward: Famine and the Origins of Righteous Resistance in Da Fo Village 329 (2008).
There were no rules against them exploiting or coercing peasants. To the extent that the national government provided subsidies, the militia took them. The Da Fo militia had 30 guns and kept the crop fields under a four-man armed guard day and night, to prevent peasants from obtaining food.
“The militia was a repressive institution, and Mao needed it to press the countless rural dwellers who were resisting disentitlement by the agents of the people’s commune.” Id. “These men were practically the perfect candidates to tear apart civil society and destroy human purpose. . . . [T]hey had a lot in common with the Khmer Rouge in Cambodia, with Ceauşescu’s militias in Transylvania, and with the Janjaweed in the Darfur region of Sudan. In rural China of the late 1950s, as in these other killing field environments, such men were backed by state power.” Id. at 330.
The militia and the communist party cadres carried large sticks they used to beat the peasants. The frontline enforcers were under orders from their superiors to administer frequent beatings, and those who failed to do so were punished. “A vicious circle of repression was created, as ever more relentless beatings were required to get the starving to perform whatever tasks were assigned to them.” Dikötter, Famine, at 299.
Without the select militia, “surely the famine’s death rate would not have been so high.” Thaxton, at 331. Because of the select militia, peasants suffered “socialist colonization, subhuman forms of labor, and starvation.” Id. at 334.
Tibet
The Chinese Communist army invaded eastern Tibet in 1949 and central Tibet in 1951. At first, they ruled relatively mildly, while they worked hard at building a transportation infrastructure for permanent military occupation. But in 1956, the Chinese announced gun registration, which the Tibetans accurately foresaw as a step towards gun confiscation. In 1957, the CCP demanded that Tibetans surrender all their firearms.
Tibet was a universally armed nation. Every man was expected to have a firearm and be proficient with it. The Tibetan Buddhist monasteries had large arsenals. Even the poorest beggar would at least have a large knife.
As the Dalai Lama later recalled, when he heard about the gun confiscation order, “I knew without being told that a Khamba [Eastern Tibetan] would never surrender his rifle — he would use it first.” Roger Hicks & Ngakpa Chogyam, Great Ocean 102 (1984) (authorized biography).
The historically fractious Tibetan tribes united in a national resistance movement, the Chushi Gangdruk. For a while, they drove the Chinese out of most of Tibet, and liberated hundreds of thousands of square miles.
Yet although the Tibetan volunteers were, man-for-man, vastly superior fighters to the Chinese conscripts, the Chinese eventually wore down the Tibetan resistance through sheer force of numbers, just as centuries before barbarians in Europe had overwhelmed the Roman Empire’s legions.
The Tibetan resistance movement did make it possible for 80,000 Tibetans, including the Dalai Lama, to escape to India and Nepal, where they have kept the Tibetan Buddhist religion alive, free of CCP domination, and have continued to inform the world about the CCP’s colonialism and genocide in Tibet.
“No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.” Amendment III.
Unlike some of the bad monarchs in England and France, Mao did not force families to let soldiers live in their homes. Rather, Mao forced people to live in soldiers’ homes, as prisoners under constant armed guard.
Starting in the Great Leap Forward, the government seized all farmland and forced people into communal labor. In many communes, families had to leave their homes, live in sex-segregated barracks, and eat in mess halls. Husbands and wives were allowed one short conjugal visit per week. This was consistent with Marxism, which boldly demanded “Abolition of the family!” Karl Marx, Communist Manifesto 24 (Samuel Moore & Friedrich Engels trans. 1888) (1848).
“The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the persons or things to be seized.” Amendment IV.
Starting in 1955-56, the CCP ordered that people allow home inspections at any time. This was part of a household registration system that also required people to reside in the registered place permanently, unless they were given government permission to move. People could travel only when issued a permit, had to register when staying somewhere else overnight, had to register their own house guests, and had to report on the content of conversations with guests.
All postal mail could be secretly opened by the government, its contents recorded in the government’s secret files on every person, to accumulate material for potential later use against the writer.
During the Cultural Revolution, Mao’s mobs, the “Red Guards,” searched house-to-house for concealed arms, books, religious items, gold coins, and evidence of disloyalty. If something was found, the victims were tortured. “Every night there were terrifying sounds of loud knocks on the door, objects breaking, students shouting and children crying. But most ordinary people had no idea when the Red Guards would appear, and what harmless possessions might be seen as suspicious. They lived in fear.” Frank Dikötter, The Cultural Revolution: A People’s History, 1962-1976, at 86-90 (2016). Many people pre-emptively destroyed their books and artwork, lest the Red Guards discover them. Ordinary thieves posed as Red Guards to get in on the looting.
“[N]or shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property without due process of law; nor shall private property be taken for public use without just compensation.” Amendment V.
The prohibition of “double jeopardy” means that if a person is tried for alleged crime and acquitted, the government cannot prosecute the same person a second time for the same offense. This was irrelevant under Mao, since persons who were accused were always convicted the first time.
While the Fifth Amendment forbids compelled self-incrimination, self-incrimination was mandatory under Mao. If an arrested person did not confess to whatever crimes she was accused of, she would be tortured until she did.
The Takings Clause means that government must pay compensation when it takes a person’s property. But under Mao, property could be taken at any time. Some people had no property at all. For example, starting with the Great Leap Forward in 1958, the peasants forced to live in barracks on the collective farms were not allowed to own even a spoon.
The communists had won the revolution in part because they had promised to give land to the peasants. The communists did so in the years immediately after the revolution. Then starting in 1958, the land was taken by the government. The peasants were turned into serfs—forbidden to leave the land and forced to labor under armed guard to produce crops, most of which the government would take without compensation.
In the Cultural Revolution, Mao’s rage mobs roamed the streets, attacking women for bourgeoise behavior such as wearing dresses or having long hair. Poor street peddlers, barbers, tailors, and anyone else participating in the non-state economy were attacked and destroyed. Many of them were ruined and became destitute.
“Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.” Amendment VIII.
The system of bail allows a person who has been arrested for crime to be released from jail pending trial, if the person posts a bond to ensure that he will appear in court for trial. Under communism, once a person is arrested, the person may simply “disappear,” never to be seen in public again.
While the Eighth Amendment prohibits torture, torture was a common tool of the Mao regime. Soon after the communists seized power in 1949, their “land reform” program encouraged peasants to torture and then kill small farmers and landlords. If Mao decided that a high-ranking official was now an enemy, he would have the official tortured in front of an assembly of the communist elite.
In the Cultural Revolution, Mao’s rage mobs roamed the streets with leather belts with brass buckles, which they used to beat their targets senseless, often inflicting severe injury. Sometimes the victims were forced to lick their blood up from the street. Any pedestrian could be accosted by Red Guards, ordered to recite quotations from Chairman Mao, and then tortured on the spot for not having memorized enough of them.
The Cultural Revolution also brought a savage campaign of genocide and torture of the minority Mongol population, living in north-central China. Ethnic minorities in other border regions received similar treatment.
A new round of purges began in 1969 and ran through 1971, based on a supposed “May Sixteenth” conspiracy from 1966. This was the date that a circular had announced the creation of the Central Cultural Revolution Group, which would publicly unleash the Cultural Revolution several days later. Supposedly, May 16 was also the debut of a secret plot against Premier Zhou Enlai. Although Zhou was himself a member of the Central Cultural Revolution Group, there were others in the group, including Mao’s wife, who hated him and plotted against him. Whatever the intrigue at the top, the persecution of “May Sixteenth elements” did not target Madame Mao but instead large numbers of people who had no plausible connection to any conspiracy; they were tortured into confessing to having joined a conspiracy that they had never heard of before they were arrested.
Meanwhile, in rural areas, where the Cultural Revolution was less intense, the local militias, aware of all the killing and torture going on in the towns and cities, decided to demonstrate their loyalty by going on their own spontaneous murder and torture sprees.
The victims were not participants in Cultural Revolution politics. Rather, the targets were the “Four Types”—who since 1949 had always been easy targets for attack. These included former landlords, anyone who had owned a small business before the revolution, anyone who was claimed to be a noncommunist, and any “bad element” who had supposedly deviated from the CCP orthodoxy of the moment.
Victims were typically denounced in public show trials that everyone in the village had to attend. Some victims were executed in plain sight to spread terror. Execution methods involved firearms, beating and torturing people to death (always common under Mao), or imaginative procedures, such as marching victims off a cliff.
“The enumeration in the Constitution of certain rights shall not be construed to deny or disparage others retained by the people.” Amendment IX.
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Amendment X.
The U.S. constitutional system is based on the sovereignty of the people. The people delegate some powers to the federal government, via the Constitution. The Ninth Amendment makes it clear that the Bill of Rights is not an exclusive list of the people’s retained rights. The Tenth Amendment affirms that the people and their state governments retain all powers that were not delegated to the federal government.
Under communism, the people have no “retained” rights or “reserved” powers. The omnipotent sovereign is the communist party. Under Maoism, the only purpose of human existence was to serve Mao.
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Barriers Against Encroachments on Individual Natural Rights of Life, Liberty and Property: America’s Founders and a Well-constructed Constitution
90 in 90 2022, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 80: Barriers Against Encroachments on Individual Natural Rights of Life, Liberty and Property: America’s Founders and a Well-constructed Constitution – Guest Essayist: Chris Burkett, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesMao Zedong’s bloody “The Cultural Revolution” led to the violation of life, liberty and property for millions of people. Though Mao claimed this was a revolution to promote communism and purge China of capitalism, it was also a manifestation of the kind of tyrannical faction that James Madison and other Framers of the United States Constitution warned about.
Mao’s Revolution was grounded upon a rejection of the tradition that human beings have natural rights as individuals, substituting instead the idea that people are, can, and should be simply “programmed” to behave as government desires with the right kinds of physical and psychological measures. According to Maoist ideology, human beings have absolutely no natural rights – including the right to life and property – that must be respected.
The American Founders, including Federalists and Anti-federalists, foresaw the kind of unspeakable horrors that could be unleashed when the idea of individual natural rights is rejected and abused by government or powerful leaders. As Anti-federalist Brutus wrote, Americans deeply believed that “all men are by nature free. No one man, therefore, or any class of men, have a right, by the law of nature, or of God, to assume or exercise authority over their fellows…This principle, which seems so evidently founded in the reason and nature of things, is confirmed by universal experience.”
Brutus understood very well that human beings, when entrusted with power, are prone to abuse that authority for their own purposes. “Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty,” Brutus wrote. “This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachments of their rulers.” Brutus points out that the state constitutions at the time provided many of these “barriers” in the form of “due process of law” as protection for the individual natural rights of citizens.
For the security of life, in criminal prosecutions, the bills of rights of most of the states have declared, that no man shall be held to answer for a crime until he is made fully acquainted with the charge brought against him; he shall not be compelled to accuse, or furnish evidence against himself—the witnesses against him shall be brought face to face, and he shall be fully heard by himself or counsel.
Constitutional barriers also protected the individual natural right to private property. As Brutus writes, “For the purpose of securing the property of the citizens, it is declared by all the states, “that in all controversies at law, respecting property, the ancient mode of trial by jury is one of the best securities of the rights of the people, and ought to remain sacred and inviolable.”[1]
Federalist James Madison also believed that for government to be just it must protect the individual right to private property. In The Federalist No. 10, Madison wrote about how the different kinds and degrees of property people acquire, hold, and use are a reflection of human nature. “The diversity in the faculties of men, from which the rights of property originate,” Madison wrote, makes it difficult, if not impossible, for government to impose by force a universal uniformity of opinion (as Mao had attempted to do in the Cultural Revolution). “The protection of these faculties is the first object of government. From the protection of different and unequal faculties of acquiring property, the possession of different degrees and kinds of property immediately results.”[2]
For James Madison, “property” meant more than just ownership of material things and goods, such as “a man’s land, or merchandize, or money.” In a larger sense, Madison wrote:
[A] man has a property in his opinions and the free communication of them. He has a property of peculiar value in his religious opinions, and in the profession 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 to his property, he may be equally said to have a property in his rights.[3]
Just as the physical property one owns is acquired through physical labor, the opinions we hold – especially our religious opinions – are the products of the labor of our minds. And Madison, like Thomas Jefferson, believed that the human mind is made free by nature – or, as Jefferson put it, “Almighty God hath created the mind free.”[4] To violate the rights of property in either sense – as Maoist ideologues attempted to do during the Cultural Revolution – is to deny the natural freedom of the human mind.
Anti-federalists and Federalists understood that one of the best means for preventing abuses of natural rights is to find a way to prevent all political power from being held in the same hands. As Brutus wrote, “When great and extraordinary powers are vested in any man, or body of men, which in their exercise, may operate to the oppression of the people, it is of high importance that powerful checks should be formed to prevent the abuse of it.”[5] Federalist James Madison agreed: “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny.”[6] As we have discussed in earlier essays, Madison and the Federalists believed that the best way to keep power diffused was to separate powers through a combination of modes of election, qualifications for office, and different terms in office for the various branches of government. All of these constitutional barriers – from mandatory due process of law to the manner in which powers are separated – help to provide checks against the kinds of actions taken by Mao and his Revolutionaries with regard to violations of the individual natural rights of life, liberty, property, and religious liberty, and make the kinds of bloody “purges” of the Cultural Revolution less likely under a well-constructed Constitution.
[1] Brutus II.
[2] The Federalist No. 10.
[3] James Madison, “Property,” 29 March 1792.
[4] Thomas Jefferson, “A Bill for Establishing Religious Freedom” in Virginia, written 1779, enacted 1786.
[5] Brutus XVI.
[6] The Federalist No. 47.
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Enemies of Freedom: Mao Zedong and the 1966 Cultural Revolution in China
90 in 90 2022, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 79: Enemies of Freedom: Mao Zedong and the 1966 Cultural Revolution in China – Guest Essayist: Chris Burkett, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesIn 1966, Mao Zedong launched what was known as “The Cultural Revolution.” This bloody period in China’s history lasted for more than a decade. Mao’s objective in calling for the revolution was to purge the People’s Republic of China of the bourgeois and capitalist elements that had allegedly infiltrated the government and produced a series of failures and setbacks in the communist nation’s development. In reality, it was an attempt by Mao, who was Chairman of the Communist Party of China, to reclaim social and political control in the country.
Mao created several radical groups to wage war against conservative and traditional groups within China. Groups of “Red Guards” went on the offensive to destroy precious artifacts in an effort to eliminate all memory of traditional Chinese culture. This also included attempts to eliminate all remaining traditional religious belief in the country, as it had been based, to a certain extent, on the idea that religious opinions were private and personal. To accomplish this, many historical and religious sites were destroyed by Mao’s revolutionaries.
Mao also called for the taking of all remaining private property from his “cultural” (i.e., political) enemies. In order to “cleanse the class ranks,” many people were sent to “the countryside” to work in “reeducation camps” (that is, concentration camps far removed from the eyes of people in the larger cities, at which hundreds of thousands – possibly millions – of people were tortured or killed). The Cultural Revolution finally ended with Mao’s death in 1976.
The terrible abuses of natural rights during Mao’s “Cultural Revolution” remind us of the importance of the United States Constitution, which explicitly guarantees the due process of law before anyone can be deprived of life, liberty, or property. The Constitution also enshrines the fundamental idea of individual freedom, perhaps most importantly in the First Amendment’s protection of religious liberty. And the separation of powers, and checks and balances written into the Constitution, make it less likely that any single so-called “Great Leader,” such as Mao, can carry out such brutal schemes of oppression and widespread murder. In the next essay, we will look at the wisdom of the Federalists and Anti-federalists affirming the importance of these ideas.
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The United States Constitution as a Bulwark Against Tyranny
90 in 90 2022, Jeanne McKinney, 6. Guest Constitutional Scholar Essayists, Blog Essay 78: The United States Constitution as a Bulwark Against Tyranny – Guest Essayist: Jeanne McKinney, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Jeanne McKinney, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesReeling in the remarkable victory of breaking free of Britain’s tyranny, America’s leaders had a duty to preserve their hard-won independence. The American Revolution had set about in motion the notion that the “People” should have a voice in their own government, in their own destinies. The idea of individual rights and protection of those rights by a system of laws and guarantees was a breaking, out-of-the-box plan. Never-in-history had a government like that been constructed. The delegates (many who were Founding Fathers) attending the Philadelphia Constitutional Convention of 1787 set about to do that. They wrote the Constitution.
James Madison wrote the document, yet there was input from other Founding Fathers. This patriotic group of leaders included Thomas Jefferson and John Adams. Jefferson had authored the Declaration of Independence, and John Adams put his pen to the Defense of the Constitution of the Government of the United States of America. Patrick Henry provided input supporting the inclusion of the Bill of Rights.
Did any of these delegates want any chance of their America to be overrun by tyranny again? Absolutely not. They were familiar with tyrannical regimes of the past and surely noted their failures. They also had to envision any oppressive absolute power ideologies that the future may usher in.
“Rebellion to tyranny is obedience to God” wrote Thomas Jefferson.
“Tyranny is a constant in human history,” says Walter R. Newell in his book “Tyrants.”
Newell analyzed three forms of it, writes author Peter Leithart. https://www.patheos.com/blogs/leithart/2016/03/three-forms-of-tyranny/
“Garden Variety” tyrant (most common in ancient history). Men who claim ownership of an entire country to use for “their own pleasure and profit and to advance their own clan and cronies.”
“Reforming tyrant.” These individuals are “unconstrained by law or democracy.” Honor, wealth, and power are their obsession. They act to improve their society by the unobstructed exercise of their unlimited authority. Think Alexander the Great, Julius Caesar, Nebuchadnezzar, Louis XIV, Napoleon etc… In a position of absolute power, they used violence for specific aims.
“Millenarian tyrant” is Newell’s third class of tyrants, pens Leithart. Here lies modern-day globalists that are fueled to impose an oppressive “millennial blueprint” on the masses in which the individual “will be submerged in the collective and all privilege and alienation will be forever eradicated.” Think Robespierre, Stalin, Hitler, Mao Tse-Tung, Pol Pot, Gaddafi, and modern-day jihadist terrorists.
These types of tyrants are masters of the veil of illusion. They are experts in the craft of propaganda. They appear “to raise up the downtrodden, to end exploitation, to create a society in which men would no longer use their fellow men as tools for their own enrichment or domination,” says Warren H. Carroll in his book, “70 years of the Communist Revolution.”
Just look at fall of democracy in Afghanistan in August 2021. The country now lies under a brutal tyrannical regime. The Taliban promises to eradicate any former law or policy that does not conform to their interpretations of strict religious Sharia law. Their interpretations of Islam are their own, using a religious shroud to justify evil beheadings, the stoning of women, and random executions in front of families. This band of violent insurgents who overran the seat of government in Kabul, claim their death-marked regime is ‘what the people want.’ Now, the Afghan people have no voice. All the news stations in Afghanistan (as of the date of this writing), are under Taliban control for propaganda purposes.
For twenty years, American troops stopped the terrorists’ plans, helping to protect Afghanistan’s form of democracy. Afghan people experienced pockets of freedom like never before. They had a chance to vote, for girls to attend schools, and for their voices to be heard. Now, Afghan citizens live in fear and many in hiding, left behind while the world watched, aghast, as the Taliban executed a lightning -quick campaign towards power. Yes, an unprotected country can be toppled in merely weeks.
Tyrants blind people to the truth of who they are, which is an elite ruling class who holds all the cards. They demand you suppress your own individual interests and limit achievement for the “good of the nation.” “They” know what’s best for you even when it is not.
Hitler’s fascist Germany did not ‘know best.’
Although Hitler had not revealed the full extent of his totalitarian aims before he came to power, as Führer (“Leader”) of the Third Reich, he attempted not only to control all political power but also to dominate many institutions and organizations that were previously independent of the state, such as courts, churches, universities, social clubs, veterans’ groups, sports associations, and youth groups. Even the German family came under assault, as members of the Hitler Youth were told that it was their patriotic duty to inform on anti-Nazi parents. (Britannica)
His government was marked by a radical authoritarian dictatorship, that imposed stringent government controls on the economy and oppressed opposition. Fascists reject free and competitive elections. Instead, Hitler sported an aggressive nationalism to his Nationalist Socialist German Workers’ Party (Nazi) party, poisoned by extreme racism. Yet, Hitler brainwashed followers justifying his evil violence with lies of being a superior race. He created a police state to handle those who opposed; his own countrymen were killed and tortured.
Hitler’s regime conducted the most prolific and inhuman genocide of the Jewish people in history. His raging Anti-Semitism spurred the Holocaust and will forever haunt generations of the earth. Hitler forced his way to absolute power, to become a murderous madman marked by the notorious sign of the swastika. In the end, it all came tumbling down and he fell from Aryan god and fascist king to a shriveling coward hiding in his underground bunker who took his own life.
America’s Founding Fathers emplaced critical safeguards in the governing Constitutional documents preventing any tyrant from using the law of the land to gain absolute power.
The American quest for stability, security, and liberty.
“If you want something you have never had, you must be willing to do something you have never done.” – Thomas Jefferson
Tyranny will never provide stability, because oppressed masses will eventually rebel. As the Founders created the Constitutional structure for a newly formed republic called America, they set about to assure a balance of power in the governance. This helped facilitate a secure and stable system of operating within a framework of laws that ensured individual liberties and rights. The United States Constitution was ratified by 11 of the original states in 1778 and by all 13 original states by 1790. The Bill of Rights was ratified in 1791.
The first three articles establish the three branches of government, Executive, Legislative, and Judicial. Articles four through seven of the Constitution describe the relationship of the states to the Federal Government, establish the Constitution as the supreme law of the land, and define the amendment and ratification processes. (National Archives)
https://www.archives.gov/founding-docs/constitution/what-does-it-say
In this 3-part governmental environment – there could be no Hitler without an overthrow of the republic. It could come in the form of a swift coup or the slow, but steady integration of oppressive ideologies. Our Founders knew well the feel of imperialism, yet had not experienced socialism, communism, fascism, or radical Sharia law. They were inspired, forward-thinking men in revolutionary times, out to eradicate tyranny in any form to occupy their land of inheritance.
Modern-day socialists and communists set out to break and degrade the laws of the republic nation, one by one. Those who decry the Constitution as invalid or outdated are traitors and enemies of America. The concept of freedom will never be outdated.
The Constitution: A steely defense against tyranny.
Anyone with a mind to implant tyranny over the American people will hit a military wall trying to do away with or overthrow the Constitution…American men and women who wear the uniform and go to war swear an oath to protect and defend the revered United States document.
The Oath of Enlistment (for enlisted):
“I, _____, do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.”
The President of the United States swears an oath to “preserve, protect, and defend” the Constitution, which is the solid foundation our government stands upon. Members of Congress are similarly bound to uphold the Constitution. Yet, we see it happening every day, as “factions” threaten the early delegates’ great plan for a free self-governing people.
James Madison, Alexander Hamilton, and John Jay wrote the Federalist papers, a collection of 85 articles and essays to promote the ratification of the United States Constitution. In #10 of the Federalist papers, Madison discussed the “factions” that pose a threat to a republic.
Factions, Madison explained, are groups “united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” Factions out for political power put their own interests first, not the common good.
Then Madison acknowledged that “the public good is often decided, not according to the rules of justice and the rights of the minor party, but by the superior force of an interested and overbearing majority.”
Failed regimes remind and warn.
According to Hitler, democracy undermined the natural selection of ruling elites and was “nothing other than the systematic cultivation of human failure.” Joseph Goebbels, Hitler’s minister of propaganda, maintained that the people never rule themselves and claimed that every history-making epoch had been created by aristocrats. (Britannica)
America denounces Goebbels’ obvious lie with 232 years of an enduring constitutional republic creating a nation others look up to and many try to copy.
An enduring question for Americans is this: How do we protect ourselves from tyranny?
These wayward political pundits ignore the failures of the Fascists, Communists, Marxists, or radical Islamists that have tried to conquer the world. It is vital to fix Congress to restore the Founders’ ideal of a republican government. We must stop the crushing of individual exceptionalism and the degradation of guaranteed rights and protections. There must be a halt to anti-constitutional propaganda, and violators of constitutional law must be prosecuted.
What all tyrants of history fail to recognize is the power of the human will. Individual will is given by God to all mankind to make his own choices. Our wills do not savor being suppressed by others who sit on thrones, the Oval Office, or Congress who think they ‘know best’ for everyone and peddle ‘sameness.’ For that alone, the writers of the Constitution have adhered to the designs of God. They gave the American people the opportunities to grow the individual, to expand great potential, to gain knowledge, and to magnify the human experience.
Freedom can only exist in a framework of laws that supports it. The Constitution, if followed, will continue to prove itself on the world stage to survive the attacks of tyranny, which continue to threaten.
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U.S. Constitution vs. the Evil of Nazi-style Regimes: Design of America’s Founding Political System for Maintaining Independence and Self-governance
90 in 90 2022, Winfield H. Rose, 6. Guest Constitutional Scholar Essayists, Blog Essay 77: U.S. Constitution vs. the Evil of Nazi-style Regimes: Design of America’s Founding Political System for Maintaining Independence and Self-governance – Guest Essayist: Winfield H. Rose, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Winfield H. Rose, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThanks to the grace of God, the United States is descended from the English political tradition. The last verse of Robert Frost’s poem “The Road Not Taken” comes to mind: “I shall be telling this with a sigh Somewhere ages and ages hence: Two roads diverged in a wood, and I—I took the one less traveled by, And that has made all the difference.” This applies to countries as well as people, and here the two roads are absolute monarchy and constitutional monarchy.
England chose the less-traveled road of constitutional monarchy and “that has made all the difference.” This goes back to the Magna Carta of 1215, the accession of King James I in 1603, the Mayflower Compact of 1620, the English Civil War of 1640-1649, the regicide of King Charles I in 1649, the Glorious Revolution of 1688 and the English Bill of Rights of 1689. In the midst of these very important events was the founding of Virginia, the first permanent English colony in the New World, in 1607, and then Plymouth colony in 1620, eventually to be followed by the other eleven.
These events have in common these principles: (1) the power of the king or government is not absolute but subject to law; and (2) the legislature is the law-making body of the realm and holds the power of the purse.
Fearing for his life, King James II fled to France in December, 1685 whereupon Parliament declared an abdication, that is, the throne was vacant. Parliament then functioned as a constitutional convention by drafting and adopting the English Bill of Rights of 1689 and inviting Mary, the elder daughter of James II, and her Dutch husband William of Orange to assume the throne as joint monarchs subject to the conditions stipulated in the Bill of Rights. Mary and William agreed and did so. This is called the Glorious Revolution, and indeed it was glorious because at this time England became a constitutional rather than an absolute monarchy.
Accordingly, the English government henceforth was divided into three interlocking, interdependent parts: the Crown, the Lords Temporal and Spiritual, and the people represented by the House of Commons.
Charles de Secondat, Baron de Montesquieu was a wealthy, intelligent and energetic Frenchman born near Bordeaux on January 18, 1689 during the reign of Louis XIV and at the very time the Glorious Revolution was unfolding in England. In 1728 he left France to travel abroad. After visiting Italy, Germany, Austria, and other countries, he went to England, where he lived for two years and was greatly impressed with the English political system.
After his return to France in 1731 he began work on his masterpiece, The Spirit of the Laws, one of the most important and best-known works ever written on political philosophy, published in 1748. This book is a comparative study of three types of government: republic, monarchy and despotism, and it is clear he detested despotism.
Montesquieu’s Book XI is titled “Of the Laws Which Establish Political Liberty With Regard to the Constitution” and reads, in part, as follows: “ . . . constant experience shows us that every man invested with power is apt to abuse it, . . . To prevent this abuse, it is necessary … that power should be a check to power. . . . When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.
“Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be subject to arbitrary control; for the judge would be then the legislator. Were it joined with the executive power, the judge might behave with violence and oppression.
“There would be an end to everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals.” (emphasis added)
It should be clear, then, that, while John Locke was the intellectual father of the Declaration of Independence, Montesquieu was the intellectual father of the United States Constitution. The twin principles of separation of powers and checks and balances permeate it from beginning to end. This includes not only the national government itself but all the state governments and the principle of federalism which defines the relationships between them.
In the 47th Federalist Madison says, “The oracle who is always consulted and cited on this subject is the celebrated Montesquieu. If he be not the author of this invaluable precept in the science of politics, he has the merit at least of displaying and recommending it most effectually to the attention of mankind.”
Madison fully develops the idea in his 51st Federalist: “ . . . the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department the necessary constitutional means and personal motives to resist encroachments of the others. The provision for defense must in this, as in all other cases, be made commensurate to the danger of attack. Ambition must be made to counteract ambition. The interest of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. . . . This policy of supplying, by opposite and rival interests, the defect of better motives, might be traced through the whole system of human affairs, private as well as public.” (emphasis added)
The economic situations in the United States and Germany in the early 1930s were uncomfortably similar while the political situations were, though similar in certain respects, different in others. Both countries were suffering from an economic depression with high unemployment and high inflation, plus the hopelessness and despair that went with them. Germany was alienated not only from its administration in office but also from its entire political system, and there was much unrest.
The American people were substantially alienated from their administration in office but not from their entire political system. It was, however, on trial. There was no guarantee it would survive. No one knows what might have happened if Franklin Roosevelt had not been elected in 1932 but he was elected and, as Washington was not Napoleon, Roosevelt was not Hitler.
There were several important differences between the United States and Germany at this time. One was that the American political system based on Montesquieu’s principles of separation of powers and checks and balances had been in operation for 140 years and had solidified into a strong tradition. Those holding positions in the three branches were dedicated to those principles and that tradition and were not egomaniacs interested in one-man rule.
We remained on the road less traveled, thank God, but Germany did not. Their tradition was authoritarian, one-man rule and they reverted to it—and made it infinitely worse and more evil—on January 30, 1933, when Hitler took power. Ideas and traditions matter.
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Hitler’s Evil Path to Tyranny
90 in 90 2022, Winfield H. Rose, 6. Guest Constitutional Scholar Essayists, Blog Essay 76: Hitler’s Evil Path to Tyranny – Guest Essayist: Winfield H. Rose, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Winfield H. Rose, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesHow the catastrophe of Nazism occurred in Germany remains a question for the ages. It had no single cause, but resulted from a unique conjunction of traditions, events and personalities.
Christianity had existed in Germany for centuries. The Germans had a great civilization based on literature, philosophy, architecture, music and science. But they also had a strong military/warrior tradition going back at least to the Battle of the Teutoburg Forest in 9 A.D. This slaughter of Roman troops was one of the worst military defeats Rome ever suffered and established the Germans as fierce fighters.
The Thirty Years’ War (1618-1648) following the Protestant Reformation caused great loss of life and virtually destroyed Germany. Two centuries were needed for Germany to recover. A great tragedy of this period is the discrediting of European Christianity. Protestants and Catholics did not come to love and respect one another as brothers and sisters in Christ. After killing each other by the thousands, they decided Christianity and its values were no longer relevant and cast them aside. This was facilitated during the next two centuries by the emigration of many German Christians to the United States, thereby making the remaining population less religious and more secular.
As bad as the religious wars of the 17th century were, England and France retained their national identities whereas Germany did not. For two centuries the national identity of Germany was, at best, unclear and, at worst, lost – except in the minds of two men, one a politician and one a musician. Richard Wagner the musician was born in 1813 and Otto von Bismarck the politician was born in 1815 while the Congress of Vienna was meeting. Both desired German restoration and worked to achieve it.
Three short, successful wars under “iron” Chancellor Bismarck in the 1860s and 1870s enabled him to unite Germany politically and found the autocratic Second Reich in 1871 under Kaiser Wilhelm I. After Bismarck’s dismissal and death, it became even more autocratic under Kaiser Wilhelm II.
Thus, in contrast to France, Britain and the United States, there was no democratic tradition in Germany. German culture included an extreme deference to authority and to authority figures. When Adolph Hitler (1889-1945) established his own one-man rule, Germans were used to it.
The 19th century saw the wars of the charismatic conqueror Napoleon Bonaparte (1769-1821), the philosophers Georg Wilhelm Friedrich Hegel (1770-1831), Karl Marx (1818-1883) and Friedrich Nietzsche (1844-1900), and the composer Richard Wagner who died in 1883. All these except Marx, who was so radical he was expelled from the country, contributed to the strange mix that was to become National Socialism.
Hegel used the term “alienation” to describe a profound disconnect between what we see as real and what we desire as ideal and wish to be real. The greater the disconnect (dissonance, difference), the greater the alienation. It includes unhappiness, sorrow, grief, depression, anger, rage and, very importantly, a compulsion to seek remediation.
To remedy alienation, Hegel exalted the state over the individual and glorified Germanic civilization as the culmination of history, thereby advancing the secularization of society and encouraging and solidifying the natural human ethnocentrism and racism of the German people.
One could say Wagner took up where Hegel left off. Wagner’s musical dramas are set in a mythical, distant and glorious past which has been lost and begs to be restored. What Bismarck did politically, Wagner did culturally – and that was to create a German state (Reich) for Germans.
Nietzsche’s part in this tragic progression was the ideas of “transvaluation of values,” “beyond good and evil,” “God is dead” and “Superman.” The first three terms jointly mean the rejection of Judeo-Christian and Greco-Roman (Western) civilization and values, the rejection of divine and natural law and the redefinition of good and evil (evil is good and good is evil).
Nietzsche differed from Hegel in that, while Hegel thought German civilization was the best possible and the best ever seen, Nietzsche regarded it with scorn and contempt, calling it a “supreme abortion (miscarriage)” which needed to be replaced with a master race of Ubermenschen or “Supermen” who would be as superior to present humans as present humans were to apes. Thus, Nietzsche removed the moral and ethical restraints of civilization and thereby enabled the German people to descend into barbarism in pursuit of mythical glory.
It cannot be determined exactly how much of this history and philosophy Hitler actually knew and understood, but it is safe to say he grasped the basics. Nietzsche had a younger sister who set up a small museum in his memory. There is a picture of Hitler visiting that museum and admiring a bust of Nietzsche (Dagobert D. Runes, Pictorial History of Philosophy, New York: Philosophical Library, 1959, p. 301). It is well known that Wagner was Hitler’s favorite composer and that he frequently played Wagner’s music on a phonograph. Wagner was intensely anti-Semitic and did not accept Jews as true Germans; neither did Hitler, as is well known. Add to this the popularity of eugenics and social Darwinism and you have a very toxic civic culture.
World War I and its aftermath put the final pieces in place for the rise of Hitler. Hitler himself served in the war and was wounded. He was obsessed with Germany’s defeat and restoration.
The abdication of the Kaiser required by President Woodrow Wilson created a severe leadership vacuum in Germany. The Allied wartime blockade of Germany’s North Sea ports was continued to June 1919, thus disrupting spring planting and worsening Germany’s already dire famine.
The Treaty of Versailles was a disaster. Germany was not allowed to participate and the war guilt and reparations clauses were especially onerous, thereby giving Hitler rallying cries of which he later made extensive use. At its signing, French Marshal Ferdinand Foch said, “This is not peace. It is an armistice for 20 years.” He missed it by three months. The Weimar Republic which followed and its constitution were seen as imposed by foreign powers and therefore illegitimate.
Inflation was severe. It was said that, before the war, you took your money to shop in a purse and brought your goods home in a wagon but, after the war, you took your money in a wagon and brought your goods home in a purse. The significance of the postwar German economic collapse cannot be overstated.
Hitler exploited the economic collapse of the 1920s but was also “lucky,” if that’s the right word, insofar that there was a model leader in nearby Italy who, according to the conventional wisdom of the day, was showing the world how the postwar European catastrophe could be overcome. That leader was “Il Duce,” Benito Mussolini, who came to power in 1922 and became Hitler’s prototype autocrat.
The failed “Beer Hall Putsch” of 1923 provided another stroke of luck for Hitler. While he could have been incapacitated or executed, he was imprisoned only for a few months, a short time but long enough to dictate Mein Kampf.
Yet the most vile aspect of Hitler’s reign was his scapegoating of, German Jews. Human beings are always tempted to avoid accepting responsibility for our failures; they are always, people tend to think, the fault of someone else. And Hitler was the worst temptation. Jews and anti-Semitism had existed in Europe for centuries. They had been blamed for outbreaks of the plague and other calamities, so why not, Hitler thought, blame them for Germany’s present troubles?
Finally, Hitler had great oratorical ability and used it to bring all these factors together into the mass movement known as National Socialism (Nazism). Germany had fallen apart and saw itself as the ravished victim of evil forces. Hitler offered change, hope, order, prosperity and restoration. The German people were quick to climb on board but, to their eternal grief and shame, eventually learned they had made a Faustian bargain with the devil. Their slogan was “Ein Volk, ein Reich, ein Fuehrer,” one people, one empire, one leader, but what they got was defeat, destruction and everlasting infamy.
New Deal and the Great Society: Warnings From America’s Founders on Constitutional Misconstruction
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 75: New Deal and the Great Society: Warnings From America’s Founders on Constitutional Misconstruction – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerWe are going to assemble the best thought and broadest knowledge from all over the world to find these answers. I intend to establish working groups to prepare a series of conferences and meetings — on the cities, on natural beauty, on the quality of education, and on other emerging challenges. From these studies, we will begin to set our course toward the Great Society. – President Lyndon Baines Johnson, Ann Arbor, MI, May 22, 1964
In America in 1964, the seeds of the later discontent of the 1960s were being planted. The nation had just suffered an horrific assassination of an enormously charismatic president, John F. Kennedy, we were in the midst of an intense national conversation on race and civil rights, and we were just starting to get mired in a military conflict in Southeast Asia.
We were also getting into a presidential election, and while tackling poverty in America wasn’t a centerpiece, President Johnson started giving a series of speeches talking about transforming the United States into a “Great Society”—a concept that was going to be the most-massive series of social welfare reforms since Franklin Roosevelt’s post-depression “New Deal” of the 1930s.
In that time, there was serious debate over whether the federal government even had the power to engage in what had, traditionally, been state-level social support work—or, previously, private charitable work. The debate centered around the Constitution’s “general welfare” clause, the actionable part of the United States Constitution building on the Preamble’s “promote the general welfare” language, saying in Article I, Section 8, Clause 1 that, “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;” (emphasis added)
Proponents of an increased federal role in social service spending have argued that “welfare” for this purpose means just what politicians today proffer that it does: that “welfare” means social service spending, and that because the Constitution grants Congress this power, such power is expansive (if not unlimited).
But this flies in the face of the whole concept of the Constitution itself—which is the idea of a federal government of limited, carefully-enumerated powers. The Founders were skeptical of powerful, centralized government (and had fought a revolution over that very point), and the debate of just how powerful, how centralized was at the core of the Constitutional Convention’s debates.
Constitutional author (and later president) James Madison said this in Federalist 41:
In 1831, he also said, more plainly:
This was, essentially, the interpretation of the clause that stood for nearly 150 years—only to be largely gutted in the wake of FDR’s New Deal programs. As discussed in the essay on FDR’s first 100 days, there was great back and forth within the Supreme Court over the constitutionality of the New Deal—with certain members of the court eventually apparently succumbing to the pressure of a proposed plan to “stack” the Supreme Court with newer, younger members.
A series of cases, starting with United States v. Butler (1936) and then Helvering v. Davis (1937), essentially ruled that Congress’ power to spend was non-reviewable by the Supreme Court… that there could be no constitutional challenge to spending plans, that if Congress said a spending plan was to “promote the general welfare” then that’s what it was.
Madison was right to be fearful—when taken into the context of an expansive interpretation of the Commerce Clause, it gives the federal government near-unlimited power. Either something is subject to federal regulation because it is an “item in or related to commerce” or it is subject to federal spending because it “promotes the general welfare.”
Building on this, LBJ moved forward with the Great Society in 1964, creating a series of massive spending and federal regulatory programs whose goal was to eliminate poverty and bring greater equity in social service programs.
Problematically, LBJ formed a series of “task forces” to craft these policies—admittedly because he didn’t want public input or scrutiny that would lead to criticism of the work his administration was doing.
Normally, when the executive branch engages in policymaking, those policies are governed by a series of rules aimed at ensuring public participation—both so that the public can offer their ideas at possible solutions, but also to ensure that the government isn’t abusing its powers.
Here, the Johnson administration did no such thing—creating, essentially, a perfect storm of problematic policymaking: a massive upheaval of government policy, coupled with massive spending proposals, coupled with little public scrutiny.
Had they allowed for greater public input, someone might have pointed out what the Founders knew: that there was a reason such social support has traditionally been either the purview of local governance or private charity, that such programs are much more effective when they are locally-driven and/or community based. Local services work because they better understand the challenges their local communities face.
And private charities provide more effective services because they not only have a vested interest in the outcomes, that vested interest is driven by building relationships centered around faith and hope. If government programs are impersonal, government programs whose management is far removed from the local communities is far worse.
The end result is twofold: faceless entitlement bureaucracies whose only incentive is self-perpetuation (not solving problems), and people who have little incentive to move themselves off of these programs.
Thus, Johnson’s Great Society was a massive failure. Not only did it not end poverty, it resulted in a devastating perpetual cycle of it. Enormous bureaucratic programs which still exist today—and which, despite pressures at various points in time (the work of President Bill Clinton and the GOP-led Congress after the 1994 election at reforming the nation’s welfare programs as one example), seem largely resistant to change or improvement.
The Founders knew that local and private charity did a better job at promoting “the general welfare” of a community than a federal program would. They knew the dangers of expansive government spending and the power that would accrue with it. Once again, as Justice Sandra Day O’Connor said in New York v. United States (1992), the “Constitution protects us from our own best intentions.”
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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The Constitutional Wisdom Ignored by the New Deal and Great Society
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Patrick Garry Essay 74: The Constitutional Wisdom Ignored by the New Deal and Great Society – Guest Essayist: Patrick Garry, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Patrick GarryNumerous economic downturns and crises plagued America during the first one hundred fifty years of its existence. The nineteenth century witnessed repeated depressions. Undoubtedly, the Great Depression of the 1930s amounted to the most severe economic crisis ever experienced in the United States. As with all previous crises, however, the country recovered from the Great Depression and lifted the rest of the world into an age of greater prosperity.
Economically, America has transcended the Great Depression, and did so relatively quickly. Constitutionally and politically, however, the Great Depression still haunts the United States. This haunting legacy arose because of actions the federal government took in response to the world-wide economic events of the 1930s. The New Deal agenda pushed by President Franklin D. Roosevelt and his Democratic Party permanently changed the nature and role of the federal government, as well as the public’s expectations and demands on that government.
Contrary to one hundred and fifty years of political and constitutional experience, the New Dealers decided to combat the Great Depression by concentrating huge amounts of power within the executive branch of the federal government, leading to the bureaucratic behemoth that now characterizes the administrative state. This administrative state has produced a government in which individual citizens have little voice or control, thereby leaving that government with little accountability to the public. The administrative state has produced staggering, incomprehensible deficits that will at some point leave some future generation with an insurmountable burden. Because of its size, its distance from individual citizens, and its unaccountable bureaucrats, the administrative state has also spawned a deepening culture of political corruption within the federal government. None of these occurrences, however, would have surprised the constitutional Framers, who tried very diligently to protect against such occurrences.
The United States Constitution was a unique document. It created an exceptional form of government, unknown in the rest of the world at that time. Among its many exceptional features, one of the most important was its power-limiting feature. Although the Constitution established a strong national government, it also imposed an array of limitations on that power to prevent the federal government from becoming so strong that it could threaten the liberty of its citizens. As the Framers foresaw, a government without adequate controls could easily accumulate the kind of power that would then insulate that government from public accountability, providing the conditions rife for corruption and abuses.
Three characteristics of the U.S. Constitution that would later be ignored and even contradicted by the New Deal promoters are: first, the Constitution’s enumerated power scheme, in which only the powers specifically outlined in the Constitution are granted to the federal government; second, the separation of powers scheme, in which the power of each branch of the government – e.g., executive, legislative and judicial – is checked by the other branches; and third, the federalism scheme of the Constitution, in which the power of the federal government is limited by the role and power of the states. By concentrating unprecedented powers in the federal executive branch, the New Deal violated the federalism and the separation of powers dictates of the Constitution. And by giving to that newly empowered central government new and unprecedented authority over subject areas not enumerated in the constitutional delegation to the federal government, the New Deal violated the enumerated powers scheme of the Constitution.
Not only did this constitutional contradiction swell the size and power of the federal government beyond the wise forecasts of the Framers, it also restricted then the vibrancy of self-government in the United States. As the Framers foresaw, self-government thrives when the public engages in its government and actively directs that government. But as the Framers also foresaw, such engagement requires accountability – and accountability is best achieved when government is closer and more open to the public. This closeness and openness characterize state and local governments, but it was just those governments that the New Deal restrained by giving such vast powers and authority to the federal government.
Many of the problems with the federal government today would never occur in families or small business or state or local governments. That is because in those venues there is a greater transparency and accountability. While there might be corruption in state governments, it is nowhere near the scale of corruption at the federal level. The Framers knew this; and therefore to save the federal government from itself, the Framers imposed limitations on the power of that government, because the Framers knew the temptations for excess and abuse that would be created by unlimited power.
The Great Society programs of the 1960s and 1970s replicated the New Deal arguments for more power to be concentrated in the federal executive branch. And not surprisingly, many of the Great Society programs have descended into corruption and waste. The federalism revolution waged by the Supreme Court in the 1990s tried to revive the Constitution’s limited government scheme. Even President Bill Clinton in 1996 admitted that “the era of big government was over.” However, with the 2008 recession, the Affordable Care Act and the covid pandemic, big government came roaring back with a vengeance. Whether this unintended turn in America’s constitutional history can be meaningfully addressed, whether a lasting reform of the New Deal and Great Society distortions of constitutional structure power can be achieved will depend on America’s lasting commitment and embrace of the Framers’ wisdom.
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Economic Depression, New Deal, and the Great Society: America’s Founders on Separation of Powers to Restrain Unelected Administrative Tyranny
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 73: Economic Depression, New Deal, and the Great Society: America’s Founders on Separation of Powers to Restrain Unelected Administrative Tyranny – Guest Essayist: Tony Williams, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsThe average government textbook explains that the American constitutional order has three branches of government: legislative, executive, and judicial which make up the reason for the three branches of government in the foundational principle of separation of powers. Drawing on Enlightenment thinker, Montesquieu, James Madison wrote in Federalist #51 that it was “admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own.”
The Founders feared that tyranny would result when the separation of powers was violated and one branch of government became too powerful. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands… may justly be pronounced the very definition of tyranny.” Scholars have used the terms imperial presidency, imperial judiciary, and imperial Congress to describe a dangerous accumulation of power in one of the branches.
All of this constitutional analysis should remind us that an unofficial fourth branch of government—the administrative state, or simply, the bureaucracy—amassed an incredible amount of regulatory power throughout the course of the twentieth century and into this century. Indeed, if one were to examine a chart of all the regulatory agencies, it would be hard to find an area of American daily life that is not regulated in dozens of ways throughout the day.
The reason for the regulatory agencies makes a certain amount of sense in an advanced industrial society and economy. All Americans want to fly in safe airplanes, drink clean water, and know what they are eating.
The administrative state began in the late nineteenth and early twentieth century with similarly good intentions. Corruption was rife as trusts had undue influence in Congress and the state legislatures. Reformers wanted to create more non-partisan governance with the creation of a civil service freer from the spoils system of the two parties.
Most importantly, the progressives at the turn of the century sought to change the nature of American government from the Founders. Legislative politics and the separation of powers principle, they believed, was too messy and often an impediment to regulating an advanced industrial economy. They wanted rule by objective administrative experts who would apply their academic and scientific expertise for rational, efficient government resulting in progress and an ordered society.
The result was a great expansion of the administrative state. The Interstate Commerce Commission, Food and Drug Administration, and the Federal Trade Commission were only some of the executive agencies that Congress created to regulate and rationalize the economy and society during the Progressive Era. President Woodrow Wilson and Congress continued this trend during World War I with several wartime agencies to manage mobilization efficiently.
The New Deal in the 1930s saw a dramatic increase in regulatory power of the federal government. Among these were numerous executive agencies Congress established during the Great Depression to achieve FDR’s goals of relief, recovery, and reform. These were consistent with the progressive vision of rational and orderly rule by experts. The Federal Communications Commission, National Labor Relations Board, and the Securities & Exchange Commission were only some of the agencies comprising the New Deal administrative state.
The Supreme Court initially thought the administrative state was running amok. In Schechter v. U.S. (1935), the Court ruled that the National Industrial Recovery Act was unconstitutional in part because Congress had delegated too much authority to the executive branch and violated the separation of powers. However, FDR appointed several justices to the Supreme Court, and it soon endorsed the administrative state for decades. In the 1984 Chevron decision, the Court went so far as to assert that courts should defer to administrative agencies interpreting their powers in congressional laws.
During the 1960s and 1970s, the Great Society and administration of President Richard Nixon created more executive agencies to regulate additional parts of the economy and society. The bureaucracy was greatly expanded with a wide variety of anti-poverty agencies and environmental agencies such as the Environmental Protection Agency. The administrative state became so large and powerful that one of the factors in the rise of the modern conservative movement culminating in the ascension of Ronald Reagan to the presidency was the promise of cutting the size of the federal government and thus the bureaucracy.
The rise of the bureaucratic administrative state was problematic for a number of reasons. First, it dramatically increased the scale and scope of federal government well beyond that envisioned by the Founders. Second, it substituted rule by the people and their representatives in Congress for rule by unelected experts in the executive branches. Third, at times, administrative agencies were allowed to set their own rules, enforce them, and decide and rule on disputes thereby amassing the power of all three branches of government.
James Madison and the Framers of the United States Constitution were right to separate the powers of America’s government into three branches. They understood that an accumulation of too much power in a single body would endanger liberty and republican government by violating the principle of a separation of powers as an important check on human nature.
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Barriers to Dismantling Constitutionalism: America’s Founders and Their Safeguards Designed in the United States Constitution Against Progressivism
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 72: Barriers to Dismantling Constitutionalism: America’s Founders and Their Safeguards Designed in the United States Constitution Against Progressivism – Guest Essayist: Gary Porter, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary R. PorterAt a Townhall meeting in Hayward, California in 2010, then Congressman Peter Stark conceded: “Yes, the Federal government can do most anything in this country.” This statement would be shocking news to the likes of James Madison, Thomas Jefferson, George Washington, even “big government” Alexander Hamilton. A government which can “do most anything” is certainly not the government the Framers tried to create in 1787. If Congressman Stark was right, the “limited and enumerated powers” government that Madison believed they had designed no longer existed. If a limited government no longer exists in the United States, there has to be a reason, a cause for such a dramatic change.
The cause, in one word, is “progressivism.” Progressives have worked diligently, mostly quietly, to bring us to the point where “the Federal government can do most anything in this country,” and particularly where the federal court system is willing to elevate the progressive political agenda to the status of constitutional law.
This is not intended to be a comprehensive essay on progressivism, books, books and more books are devoted to that subject; but to proceed we must have a common understanding of what progressivism is and what progressives believe with which to compare to the principles of the United States Constitution.
prə-grĕs′ĭ-vĭz″əm, noun, “A political ideology that favours progress towards better conditions in society.”[i] “As a political movement, progressivism purports to advance the human condition through social reform based on advancements in science, technology, economic development and social organization.”[ii]
Who doesn’t want to better the human condition? to improve our standard of living? Who would object to such a lofty goal? If that is the goal, how does a society work toward bettering its social, economic and humanitarian conditions? “The devil’s in the details.”
“In the United States, progressivism began as an intellectual rebellion against the political philosophy of Constitutionalism as expressed by John Locke and the Founders of the American Republic, whereby the authority of government depends on observing limitations on its just powers. What began as a social movement in the 1880s[iii], grew into a popular political movement referred to as the Progressive era; in the 1912 United States presidential election, all three U.S. presidential candidates claimed to be progressives.”[iv]
The winning progressive of the 1912 presidential election, Woodrow Wilson, is credited with coining the phrase “Living Constitution,” which holds that the Constitution must be reinterpreted frequently to keep it “relevant” to modern times. But to fully understand progressivism’s effect on the presidency, we must go back to America’s first acknowledged progressive President: Theodore Roosevelt.[v] Roosevelt’s approach to presidential power was that“[t]he executive power [is] limited only by specific restrictions and prohibitions appearing in the Constitution or imposed by Congress under it constitutional powers.”[vi] In other words, there are no limitations to presidential power except those specifically mentioned in the Constitution or acts of Congress. To Roosevelt, the Constitution vested the President with near unlimited power.
But Roosevelt and progressives who followed him ran into twin obstacles: the U.S. Constitution and the principle of majoritarianism. The Constitution created a limited-and-enumerated-powers government and required respect for the law, law created by legislative majorities. Majoritarianism requires 51 percent or better support for a policy to become law. Progressives have never been in a majority in the United States – only a small percentage of Americans, about 12 percent of American adults, [vii] today consider themselves “progressive.” But progressives have one trait in abundance: an unwavering belief they are right, and patience for the “long fight.”
Their first objective was to dismantle the restrictions placed on the federal government by the Constitution, and then, knowing that would not be sufficient, to mold the federal judiciary, particularly the Supreme Court, into a body willing to look beyond the law in favor of societal “progress,” a court system willing to follow the philosophy of Supreme Court Associate Justice Thurgood Marshall: “You do what you think is right, and let the law catch up.”[viii] Until recently, they had succeeded famously in both respects.
What do Progressives believe? Although there are political parties called “Progressive” in other countries, notably countries where socialism is ascendant, there is no Progressive Party in the United States. Wikipedia identifies the Democratic Party as the current embodiment of progressivism in the United States.[ix] But within the Democratic Party there are “classical liberal,” moderate democrat, environmental and other factions. Progressives, while making great inroads, are still a minority. Research by Elaine Kamarck at the Brookings Institution in 2018 found that 44 percent of Democrats identified as a “progressive,” compared to 29 percent in 2016 and 26 percent in 2014.[x]
Bottom line: there is no single acknowledged platform or list of progressive beliefs. But here’s my view after considering multiple sources.
Utopianism. If there is one thing that distinguishes progressivism from other forms of political philosophy, it is an unflinching belief in the perfectibility of man and society. Human society has myriad problems; but progressivism holds that they can all be solved if we simply work together – and implement the solutions progressives have come up with. Mankind is innately good and those infrequent deviations when men and women do wrong should be handled carefully and gently – incarceration is usually a last resort (unless politics get involved; witness the January 6th prisoners).
Atheism/Agnosticism. Although a progressive form of Christianity has reportedly emerged in the last few years (focusing on the so-called “Social Gospel”), progressives typically have no use for God, divine revelation, divine providence, or the concept of original sin.
Universalism/Globalism. Progressives believe a single, one-world government is the perfect vehicle to bring about progressive ends as quickly and efficiently as possible.
Statism. Progressives view government as a tool, perhaps the best tool to achieve the perfect society. While they tout “freedom from government interference” they do not hesitate to use the power of government to achieve their societal ends.
Collectivism/Cooperation. Progressivism holds to a diminished view of individualism and private property, replaced by the need for everyone to cooperate to achieve progressive goals, to include forced “cooperation” if necessary.
Historicism. Historicism is a belief that history must be understood in context, and if the proper progressive-anointed context is not present in the traditional way of teaching certain history, the history must be re-interpreted in the “correct” context (the 1619 Project being the perfect example).
Enhanced Group Rights, Diminished Individual Rights. A diminished view of free speech, for example, replaced by limitations on speech in pursuit of “harmony,” “non-offensiveness” and an obsession with “disinformation.” British police arrested someone recently because their repost of a post on Facebook caused someone “anxiety.”[xi]
Social Justice. “Social Justice” is measured by equality of outcome rather than equality of opportunity. Social Justice is of paramount importance to the progressive, and the full strength of government should be employed to achieve it. “Too much economic and political power is concentrated in too few hands.”
Living Constitution. As has been quoted, progressivism is at least partially a response to constitutionalism, the idea that a written constitution both empowers and limits the power of the government it creates. But progressives do not abandon the Constitution altogether when they encounter its limits, they simply re-interpret the document to remove the limits. “Progressivism insists that the principled American constitutionalism of fixed natural rights and limited and dispersed powers must be overturned and replaced by an organic, evolutionary model of the Constitution.”[xii]
A typical response of a progressive to being told that something can’t be done for constitutional reasons was voiced in 2010 by Speaker of the House, Nancy Pelosi: “If the gate Is closed, we will go over the fence, if the fence is too high, we will pole vault in.”[xiii]
Use of the Courts
In a 1912 speech, Theodore Roosevelt complained that the courts often obstruct the will of the people in an unproductive manner. I’m not sure which “people” Roosevelt was talking to, but if you believe this, how do you overcome it? You populate the courts with progressive judges and justices. When you can’t seem to get the Supreme Court to see things your way, you employ a little “arm twisting” such as the famous “Court Packing” threat of FDR.
Perhaps the most compelling proof that progressives see the court as the mechanism for enacting policy preferences which don’t stand a chance in the democratic process was the recent “full-court press” used to try to prevent the confirmation of three conservative justices to the Supreme Court. But even this theater was over-shadowed by the apoplectic reactions that followed the Dobbs decision, in which a conservative-majority court returned the issue of abortion to the democratic process in each state. This, predictably, has led to demands to “pack the court” and return the court to the progressive policy-factory it once was.
Use of the Public Schools
Progressive educator John Dewey, typically called the “father of modern public education,” wrote: “I believe that education is the fundamental method of social progress and reform… a regulation of the process of coming to share in the social consciousness; and that the adjustment of the individual activity on the basis of this social consciousness is the only sure method of social reconstruction.”[xiv] (Emphasis added.) Today, it is safe to say, progressives dominate the U.S. public school systems. They control the curriculum, administration, library book selections and of course the actual teaching that goes on in most classrooms. According to the Center for American Progress, the public school system is graduating more progressives each June.[xv]
The Constitution’s Challenges to Progressivism
Originalism. There is no question that the Founders intended the Constitution to be interpreted as they understood it. In an 1824 Letter to Henry Lee, James Madison insisted that:
“I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that is not the guide in expounding it, there may be no security for its faithful exercise.”
Thomas Jefferson’s view was similar:
“On every question of construction, let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or invented against it, conform to the probable one in which it was passed.”
“But the Founders didn’t have to contend with the global threat of climate change” is the frequent retort today. “Certainly, the Constitution must be adapted to deal with this modern threat.” So, who best to “adapt” the Constitution to modern conditions? Why, nine unelected judges in black robes, of course. We certainly can’t leave such an important issue to democracy now, can we?
Checks and Balances. Leaving aside the myth that the Framers created three “co-equal” branches of government,[xvi] the framers did imbed certain safeguards against a single branch of government assuming unwarranted power. “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, selfappointed, or elective, may justly be pronounced the very definition of tyranny.”[xvii] Unfortunately, many of these “checks and balances” have been systematically disassembled by the Supreme Court. For a list of the court decisions which have essentially shredded the Constitution’s limits on governmental power see here or read: The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008, by Robert A. Levy and William Mellor.
Separation of Powers. This doctrine is another traditional restraint on the accumulation of unintended power which has been at least partially dismantled by the Supreme Court. The 1989 decision in Mistretta v. U.S. found that:
“… our jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives. Accordingly, this Court has deemed it “constitutionally sufficient” if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” (Emphasis added.)
In other words, the non-delegation of powers doctrine held by John Locke and others of the Founding Era would be ignored, the people not consulted, and Congress simply given this ability to delegate. Making matters worse was the opinion in Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,[xviii] The Supreme Court declared that federal courts should defer to the decisions of Executive Branch agencies when those agencies interpret the guidance in a statute if the “agency’s answer is based on a permissible construction [emphasis added] of the statute.” Some of these unsupported agency rules are challenged in court and overturned, and Congress has the power to overturn them as well, but a legal challenge is an expensive process, a quarter of a million dollars or more, so not every improper rule is challenged.
The Failures of the Progressive Vision
Progressivism came about as a challenge to constitutionalism. It should be clear by now that progressivism and constitutionalism simply cannot coexist; one must yield.
The basic problem with progressivism is that there is no end state, no way to tell whether progressive policies have worked; until the nebulous, undefinable state of “perfection” is reached, there can be only a steady, monotonous march onward toward “progress.”
Progressivism has brought us a federal government that can regulate every aspect of business, whether it deals with interstate commerce or not; a Code of Federal Regulations exceeding 180,000 pages; $2 Trillion in additional costs to U.S. businesses due to regulation compliance, a cost passed on to customers of those businesses; 4,500 plus federal crimes (compared with four in the original Constitution); the unwarranted taking of private property; in short: a government “that can do most anything in this country.”
Constitutionalism yielded during the Warren Court years and made somewhat of a comeback during the Rehnquist Court. What is disturbing to progressives now is the prospect of a new conservative court rolling back the “progress” progressives have made over the last 40-60 years. If there is reason for hope for constitutionalism today it lies in the present Roberts Court, placed during the Trump administration, with a 6-3 conservative to progressive balance. If the court can survive the progressives’ “full-court press” to change this balance, America might begin to see more of the progressive agenda to dismantle the original intentions of the United States Constitution, dismantled in the years ahead.
For further reading:
Progressivism
America Transformed: The Rise and Legacy of American Progressivism, 2021, by Ronald Pestritto.
Excuse Me, Professor, Challenging the Myths of Progressivism, 2015, Lawrence W. Reed.
Progressivism, A Primer on the Idea Destroying America, 2014, by James Ostrowski.
Plundered, How Progressive Ideology is Destroying America, 2012, by Michael Doffman.
How Progressives Rewrote the Constitution, 2006, by Richard Epstein.
The Progressive Era, Liberal Renaissance or Liberal Failure, 1965, Arthur Mann, ed.
The Supreme Court
Supreme Disorder; Judicial Nominations and the Politics of America’s Highest Court, 2020, by Ilya Shapiro.
Judicial Tyranny, 2014, by Mark Sutherland.
Storm Center, the Supreme Court in American Politics, 2011, by David Obrien.
Packing the Court, The Rise of Judicial Power and the Coming Crisis of the Supreme Court, 2009, by James Burns.
The Dirty Dozen, How Twelve Supreme Court Cases Radically Expanded Government and Eroded Freedom, 2008, by Robert A. Levy and William Mellor.
Men In Black, How the Supreme Court is Destroying America, 2005, by Mark Levin.
Courting Disaster, How the Supreme Court is Usurping the Power of Congress and the People, 2004, by Pat Robertson.
The Tempting of America, 1990, by Robert Bork.
[i] The American Heritage® Dictionary of the English Language, 5th Edition.
[ii] https://en.wikipedia.org/wiki/Progressivism
[iii] Some writers identify the Progressive Era as 1880 to 1920; I contend the Progressive Era never stopped.
[iv] https://en.wikipedia.org/wiki/Progressivism
[v] Roosevelt was President from September 14, 1901 to March 4, 1909.
[vi] Theodore Roosevelt, An Autobiography of Theodore Roosevelt, ed., Stephen Brennan (New York: Skyhorse Publishing, 2011), 304–10
[vii] Accessed at https://news.gallup.com/poll/141218/americans-unsure-progressive-political-label.aspx Note, 54%of respondents were “unsure” whether the progressive label fit them.
[viii] https://www.azquotes.com/quote/914008
[ix] https://en.wikipedia.org/wiki/Progressivism#Progressive_parties_or_parties_with_progressive_factions
[x] https://www.npr.org/2018/10/29/659665970/as-more-democrats-embrace-progressive-label-it-may-not-mean-what-it-used-to
[xi] https://citizenfreepress.com/breaking/man-arrested-for-causing-anxiety-on-facebook/.
[xii] Bradley D. S. Watson, accessed at: https://amgreatness.com/2021/08/11/how-progressives-rewrote-american-history/
[xiii] Nancy Pelosi, accessed at: https://www.speaker.gov/newsroom/if-the-gate-is-closed-we-will-go-over-the-fence-if-the-fence-is-too-high-we-will-pole-vault-in
[xiv] John Dewey, My Pedagogic Creed, School Journal vol. 54 (January 1897), pp. 77-80
[xv] https://www.americanprogress.org/article/public-opinion-snapshot-millennials-are-a-progressive-generation/
[xvi] It is an irrefutable fact that the powers of the Congress eclipse those of either of the other two branches.
[xvii] James Madison, Federalist 47.
[xviii] Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984)
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The United States Constitution and Institutional Framework for Executive Firmness
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, William Morrisey, Ph.D. Essay 71: The United States Constitution and Institutional Framework for Executive Firmness – Guest Essayist: Will Morrisey, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, William Morrisey PhDGood government produces good administration, Publius has written. Good administration is what we need from the executive branch, charged as it is with carrying out the laws enacted by the legislature within the framework of the supreme law of the land, the United States Constitution. A good executive must act with energy. To enable executives so to act, the offices they occupy must have unity, duration, adequate provision in terms of money and personnel, and competent powers. Publius therefore defends the Framers of the Constitution in their establishment of a presidency unlike the consular system of Rome, which assigned domestic policy to one consul, foreign (and especially military) policy to another. The American president serves as chief administrative officer for domestic policy as well as Commander-in-Chief of the armed forces. Congress may not manipulate his salary and the president can exercise the power to veto Congressional legislation, thereby maintaining his independence of judgment. He is, then, neither a monarch nor a legislator but a republican executive.
In Federalist 71, Publius presents the reasons for and the institutional means to enable duration in office, “the second requisite to the energy of the executive authority.” There can be no substitute for character, for “the personal firmness of the executive in the employment of his constitutional powers.” Nor can there be any substitute for “the stability of the system of administration which may have been adopted under his auspices” as a consequence of that firmness of character. But no person can exercise such character or carry out such a system without an institutional framework which permits him to do so.
As always, Publius shows the link between the Constitution’s institutional arrangements and human nature. “It is a general principle of human nature that a man will be interested in whatever he possesses, in proportion to the firmness or precariousness of the tenure by which he holds it; will be less attached to what he holds by a momentary or uncertain title, than to what he enjoys by a durable or certain title.” The firmness of the man must be reinforced by the firmness of the office. In regimes whose executives serve at the whim of the legislature, as in many parliamentary systems, why would any person of character take the executive office seriously? Better to be a power broker in the parliament than the hapless holder of fly-by-night executive powers, powers that will not last if you exhibit the slightest hint of independence. And if you accepted such an office, why risk anything to defend powers which are not truly yours to wield? Such an institutional arrangement undermines civic courage, inclining the one who suffers under it, “too little interested in it to hazard any material censure or perplexity from the independent exertion of his powers, or from encountering the ill-humors, however transient, which may happen to prevail, either in a considerable part of the society itself, or even in a predominant faction in the legislative body.”
This defect had already been on display under the Articles of Confederation, which did not separate executive power from the legislative branch. The Americans who wanted to retain the Articles regime against the proposed Constitution were “inclined to regard the servile pliancy of the executive to a prevailing current, either in the community or in the legislature, as its best recommendation.” They want representative government to mirror Athenian-style direct democracy as much as possible, to have it register the opinions and even the passions of the people and their elected legislators. Publius considers such notions as “very crude,” with regard both to the ends and especially the means of government.
The Declaration of Independence set down the just purpose of American government as securing the safety and happiness of the American people, a purpose justified by their natural right to life, liberty, and the pursuit of happiness under the Laws of Nature and of Nature’s God. Much of that is “self-evident,” the Declaration says. Publius agrees: “It is a just observation that the people commonly intend the PUBLIC GOOD.” But as those same people themselves acknowledge, having learned it from experience under the Articles regime, they do not “always reason right about the means of promoting” the public good, “beset as they continually are by the wiles of parasites and sycophants, by the snares of the ambitious, the avaricious, the desperate, by the artifices of men who possess their confidence more than they deserve it, and of those who seek to possess rather than to deserve it.”
If self-government is therefore dangerous, “the republican principle demands that the deliberate sense of the community should govern the conduct of those to whom” the people “intrust the management of their affairs.” Characteristically, Publius attempts to firm up the chance that the distinctively human characteristic, reason, will have the greatest possible authority in government while acknowledging the impassion—Christian would say ‘fallen’–character of human beings.
There will, then, be circumstances “in which the interests of the people are at variance with their inclinations, it is the duty of the persons whom they have anointed to be the guardians of those interests to withstand the temporary delusion in order to give them time and opportunity for more cool and sedate reflection.” Thus to serve the people “at the peril of their displeasure” takes “courage and magnanimity.”
It is important to pause and appreciate the moral structure of Publius’ argument, here. He wants to see the rule of reason in the United States—to the extent possible, given human frailty. The Constitution generally, and a four-year, renewable presidential term in particular, provides an institutional framework for such rule. But neither the rule of reason nor the defense of the Constitution can survive without two other virtues that array themselves against popular passion. Civic courage is easy to understand and to appreciate, if not commonplace. We have all seen examples of men and women, even children, who have refused to buckle under ‘peer pressure.’ Magnanimity is less well understood.
Magnanimity literally means greatness of soul: in Latin, magnus means great, large; anima means soul. The classic description of the great-souled individual comes from Aristotle’s Nicomachean Ethics IV.3. The great-souled man, Aristotle writes, “deems himself worthy of great things and is worthy of them.” This means that he possesses all the cardinal virtues—courage, moderation, justice, and prudence—to a very high degree. Accordingly, he stands ready to withstand the demands of others, however intensely they may clamor, when he sees that those demands are cowardly, immoderate, unjust, or imprudent. He can take the heat, and he can do it without resentment.
A republican regime undergirded by a democratic civil society will test him. He can pass that test, but without a firm institutional foundation on which to stand he will be physically overwhelmed by the majority tide, helpless to resist “the humors of the legislature.” The Articles of Confederation government had folded executive and judicial power into the legislature, giving inadequate support for reason, courage, or magnanimity—the finest human characteristics. “To what purpose separate the executive or the judiciary from the legislature,” as the new Constitution had done, “if both the executive and the judiciary are so constituted as to be at the absolute devotion of the legislative” branch? The powers would then be separated in name only, with the legislature “exert[ing] an imperious control over the other departments,” unbalancing the apparently balanced powers of the federal government as framed by the Constitution.
This is exactly what has been happening under the Articles. The same thing will happen again unless the president enjoys a stable tenure in office. In view of this, “it may be asked whether a duration of four years would answer to the end proposed,” whether such a duration of a presidential term will suffice to resist attempts by legislators to dominate the system. Publius does not pretend that he knows the answer, since a four-year term was untried in previous American governments and the lifelong term of a European monarch—in principle if not always in practice as stable a provision as can be had—was highly undesirable. It is nonetheless reasonable to think that a four-year presidential term “would have a material influence upon the spirit and character of the government.”
Why? Because any person “endowed with a tolerable portion of fortitude” should see that there is “time enough” before the current term expires, and the prospect of re-election draws near, for the people and their legislative representatives to have calmed down and to be ready to assess the president with equanimity. True enough, this would mean that he might not dare to resist popular disapproval so readily as his term drew to an end, but for most of the time he would be able to hold steadily to his constitutional duties and best judgment. At the same time, unlike a monarch, a president won’t stay in office long enough “to justify any alarm for the public liberty.” Which is not to say that his enemies won’t try to raise such alarms.
Publius’ understanding of the presidency not only departs from the conception of executive power which prevailed under the Articles, it also contradicts the new conception of the presidency advanced by the Progressives, more than a century later. President Woodrow Wilson rejected the United States Constitution as an antiquated and constricting product of a bygone era, and equally rejected its moral foundation in the laws of Nature and of Nature’s God. In place of natural right, he substituted historical right, claiming that the course of events, guided by divine Providence, provided the true moral light for humanity. In view of this continuing historical progress, the Constitution must be reconceived as an ‘elastic’ or ‘living’ document, to be reinterpreted by political leaders such as himself who placed themselves on the cutting edge of that progress. In place of magnanimity, Wilson substituted compassion, not so much a virtue as a sentiment, one intended to carry the people along on a tide of emotion with slogans like ‘I feel your pain.’ The president, then, should serve not so much as the executor of Congressional legislation within a stable constitutional framework but as the principal leader of the nation, the person who senses where public opinion should go next, appealing more to their passion than their prudence in the hope of induing the people to follow him to that ever-new, ever-higher destination.
As a result, the Progressives raised expectations to unfulfillable heights, grafting their own unusual brand of moving-target ‘constitutionalism’ onto the old Constitution, with predictably confusing and self-contradictory results that have persisted to this day.
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Power Concentrated in the Hands of a Few: Conflict of Progressive Government Toward American Individualism and the United States Constitution
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 70: Power Concentrated in the Hands of a Few: Conflict of Progressive Government Toward American Individualism and the United States Constitution – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathAt the 1896 Democratic Party convention in Chicago, a former Congressman from Nebraska, William Jennings Bryan, gave a stirring oration in favor of the party’s “pro-silver” political platform. Filled with passion and a near-revolutionary fire, the speech concluded with a warning to those who wanted the United States to maintain a gold standard for the dollar, “You shall not press down upon the brow of labor this crown of thorns; you shall not crucify mankind upon a cross of gold.” Bryan underscored this patently religious analogy by posing at its conclusion with his arms outstretched like someone nailed to a cross. The convention erupted in pandemonium. The ecstatic reaction of the delegates resulted in the “Boy Orator of the Platte River” receiving the party’s nomination for president of the United States at age 36, the youngest major party nominee ever. He became the Democrats’ presidential standard bearer twice more, in 1900 and 1908, again the only major party nominee to do so. He lost each time.
In addition to the Democratic Party nomination, Bryan received that of the more radical, mostly rural-based Populist Party, which favored federal government intervention in the economy. The Populists split after the 1896 election, with most supporters voting for Democrats, while others, typically urban workers, drifted to the Socialist Party. Although historians have long debated the direct influence of the Populist Party on the Progressive movement of the turn of the 20th century, there are clearly identifiable connections between them in regards to economic and political reforms. One difference, however, is in their class identification. The Populist movement was working class and agrarian. The Progressive reformers were upper-middle class urbanites, many from the Midwest. Related to that difference was the greater support for Progressivism among intellectuals and “scribblers,” which produced a more coherent political program and a stronger ideological framework. Ultimately, this produced far greater political success for the Progressive agenda—and more lasting repercussions.
As that passage from the “Cross of Gold” speech suggests, Bryan had a strong evangelical and Calvinist bent. He had a religious conversion experience as a teenager and in his entire life remained a theological conservative who preached a social gospel. His resort to religious imagery and apocalyptic language was not uncommon among Progressives. Theodore Roosevelt could thunder to the assembled delegates at the Progressive Party convention in 1912, “We stand at Armageddon, and we battle for the Lord,” as his enraptured supporters marched around the hall, singing “Onward, Christian Soldiers” and similar spirited hymns.
Those Progressives who were more skeptical of religion nevertheless had similarly messianic visions of reform which would deliver the country from its ills and lead to the Promised Land. The forces for change would be a democratized political structure invigorated by mass participation; a concerted program to attack the root causes of societal dysfunctions, from poverty to alcohol, narcotics, gambling, and prostitution; laws to prevent exploitation of the large urban working class; and, most fundamental, a rational system of policy-making controlled by a strong executive and a stable bureaucracy of technological and scientific experts. As presidential nominee Woodrow Wilson announced in his campaign platform in 1912, “This is nothing short of a new social age, a new era of human relationships, a new stage-setting for the drama of life.” Certainly nothing picayune or transitory about that!
The first of those goals was accomplished over time with the popular election of Senators through the 17th Amendment, and through the adoption by many states of the initiative and referendum process, primary elections for nominations for public office, more expanded “home rule” for localities, and non-partisan elections for local offices. Further, the half of American women excluded from the franchise received it through the 19th Amendment, adopted in 1920. On the other hand, by the late 1920s, the Progressives’ nativism eliminated the previous practice in a number of states of letting non-citizen immigrants vote.
The second came in the form of state laws against vice. Lotteries became illegal. Prostitution, which was ubiquitous at the turn of the 20th century typically in the form of brothels, was already against the law; those laws began to be enforced more vigorously. Another of America’s periodic movements to ban alcohol got under way. Because state laws often proved unable to control interstate markets of vice made possible through easier modes of transportation, the federal government became involved. Narcotics were regulated through taxation under the Harrison Narcotics Tax Act of 1914. The interstate transportation of lottery tickets was prohibited in 1895 through a federal law upheld by the Supreme Court in Champion v. Ames in 1903. The Mann Act, or White Slave Traffic Act of 1910, prohibited taking a woman across state lines for immoral purposes. That law was upheld by the Supreme Court in Hoke v. United States in 1913 and extended to non-prostitution private dalliances in Caminetti v. United States in 1917. After 27 states declared themselves “dry,” and others adopted “local options” to prohibit alcohol, temperance groups, especially those connected to upper-middle class women’s organizations, succeeded in having the 18th Amendment adopted in 1919. That national ban on production, sale, and transportation of alcohol for drinking was quickly followed by enabling legislation, the Volstead Act, that same year.
The third area of social reform was advanced through the adoption of maximum hour laws, minimum wage laws, unionization protections, and anti-child labor laws around the turn of the 20th century. Some such efforts, especially by Congress, initially came a cropper before the Supreme Court as violations of the United States Constitution. They fared better during the next wave of Progressivism under President Franklin Roosevelt in the 1930s.
The fourth, a government and society directed by an unelected technocratic elite of policy-making experts, lay at the heart of the Progressive movement. It proved to be a long-term project. To understand the “Progressive mindset” requires a closer examination of two men, Woodrow Wilson and Herbert Croly. There were other influential intellectuals, such as Walter Lippmann (who wrote A Preface to Politics in 1913, among many other works) and Brooks Adams (who was a grandson of President John Quincy Adams and wrote A Theory of Social Revolution that same year), but Wilson and Croly were renowned.
Thomas Woodrow Wilson was dour, humorless, and convinced of the fallen nature of all but the elect few. For human progress to flourish, he postulated the need for strong leaders with proper principles who would provide the discipline and vision for the moral guidance of the weak at home and abroad. Calvinist in appearance, outlook, and family background (his father and grandfather having been Presbyterian ministers), he embodied the caricature of a Puritan divine. Those traits also made him a perfect Progressive.
Before becoming president of the United States, Wilson was a professor at Princeton University, later becoming its president. He also was elected governor of New Jersey. During his academic tenure, he wrote several influential books which set forth his criticisms of American constitutional structure. His proposed solutions cemented his bona fides as a Progressive.
Wilson was strongly influenced by 19th century German intellectual thought, especially Hegel’s views of the State as the evolutionary path of an Idea through history, and by contemporary adaptations of Darwinian theories to social science. Indeed, so enamored was Wilson of German philosophy and university research that his wife, Ellen, learned the language just to translate German works of political science for him.
Wilson enthusiastically embraced the nascent ideology of the State. He characterized that entity as organic and contrasted it with what he described as the mechanical nature of the Constitution with its structure of interacting and counterbalancing parts. As he wrote in Constitutional Government in 1908, “The trouble with [the Framers’ approach] is that government is not a machine, but a living thing. It falls, not under the theory of the universe, but under the theory of organic life. It is accountable to Darwin, not to Newton.”
The “organic” State tied to the people in some mystical union must not be shackled by a fusty piece of parchment with its artifice of checks and balances. An entirely new constitutional order must be created that reflects the inevitable ascendancy of the State in human affairs. If that was not a realistic option due to reactionary political forces or sentimental popular attachments, the parchment must be broadly amended. During Wilson’s first presidential term, constitutional amendments to authorize a federal income tax and to elect Senators by popular vote were approved.
Beyond formal amendment of the Constitution, the various components of the government had to be marshaled into the service of Progressivism. Thus, Congress must pass far-reaching laws that increase state power at the expense of laissez-faire individualism. The result was a series of federal regulatory laws in union-management affairs, antitrust, child labor, tax, and—through the creation of the Federal Reserve system—banking. That activism was replicated in many states. The era of big government had arrived.
As usual, the Supreme Court took longer. Though the Court upheld various particulars of Progressive legislation, the organic theory of the state was not embodied forthrightly in its decisions until the later New Deal years and the post-Second World War emergence of the “Living Constitution” jurisprudence. Adherents to the Progressive deification of the State, then and now, have sought to remake judicial doctrine by untethering it from formal constitutional structure in favor of ideological dogma. Their efforts have focused on an expansive interpretation of Congressional powers, disregard of the prohibition against excessive delegation of power to bureaucracies, and a transformation of the Equal Protection Clause into a contrivance for “positive” equality. On that last point, success has been slow in coming. But since every political entity necessarily has a constitution, for Progressives it is beyond cavil that their “organic state” requires a progressive living constitution, one that prioritizes social justice and secures equality of condition. Exempting, perhaps, the governing elite.
That left the Presidency. Wilson’s early work, Congressional Government from 1885, reflected his contempt for American separation of powers and urged constitutional change to a parliamentary-style system with centralized power and an expanded federal bureaucracy. He dismissed the president as a mere “clerk of the Congress.” Over the next two decades, his perceptions about the Presidency changed significantly. Wilson regarded the administrations of Grover Cleveland and Theodore Roosevelt as exemplary. His last major work, Constitutional Government, published in 1908, focused on the Presidency as the engine for change.
Wilson’s eventual views of the Presidency were thoroughly 20th century. He treated the formal constitutional powers of the office as minor matters and regarded its occupant as increasingly burdened by obligations as party leader and as executor of the laws and administrator of Congressional policies. That burden had become impossible for a single man, a refrain frequently heard before and since. This fact of political life would only become more pressing with the inevitable—and welcome—evolution to a more powerful and controlling State.
Therefore, a president will and must leave the performance of those duties increasingly in the hands of subordinates. The appointment of trusted officials was more important than the selection of wise men of different opinion to give him counsel, as George Washington did, or of leaders of prominent factions within the party coalition, as was the practice of, among others, Abraham Lincoln. Instead, as Wilson wrote, presidents must become “directors of affairs and leaders of the nation,—men of counsel and of the sort of action that makes for enlightenment.”
Theodore Roosevelt’s “bully pulpit” construct of the Presidency was the new model. The traditional chief executive dealt with the congressional chieftains to influence policy as it emerged within those chambers in response to the broadly-felt needs of the times. Instead, the modern president would bypass the ordinary channels of political power and appeal to the public to shape policy to his creative vision. Wilson wrote, “The President is at liberty, both in law and in conscience, to be as big a man as he can. His capacity will set the limit….” This Nietzschean conception of the Presidency as a vessel for its occupants to exercise their will to power is quintessentially fascist. The focus on the charismatic and messianic leader as the ideal of government and the vehicle for progress to a utopian just society is a hallmark of American progressivism to this day and has also characterized the more virulent forms of collectivism. There are telling appellations: Il Duce Mussolini, Der Fuehrer Hitler, Vozhd Joe Stalin, El Líder Castro, and North Korea’s Kims (Great Leader, Dear Leader, and Respected Leader). All convey the same meaning. Personality cults inevitably accompany Progressive-style leaders.
Wilson’s descriptions of the Presidency and the reality of political practice had a core of truth, lest his prescriptions not be plausible. To get to those prescriptions, however, he set ablaze many constitutional straw men. Though he paid lip service to the Constitution’s framers’ sagacity, he understated their practical appreciation of the office. Alexander Hamilton wrote several Federalist Papers that extolled the need for energy and accountability in the Presidency which he argued were furthered by the Constitution’s structure of the unitary executive. Through his Pacificus Letters, Hamilton became the foundational advocate of a theory of broad implied executive authority on which later presidents relied, including Wilson’s model, Theodore Roosevelt. George Washington shaped the contours of the Executive Branch by his actions within the purposely ambiguous contours of presidential powers under the Constitution. There were serious debates in the Washington administration about the nature of the president’s cabinet and the constitutional relationship between the president and the officers, debates that were generally resolved in favor of presidential control over those officers.
Wilson decried what he saw as a lack of accountability in the Constitution’s formal separation of powers. Yet it was his system where the president is “above the fray,” while little-known and uncontrolled subordinates carry out all manner of critical policies without, allegedly, his awareness. Events over the past two years have amply demonstrated the flaws of rule by credentialed, but unaccountable “experts” at all levels of government. Their decrees, too often based on misunderstood or even fabricated “evidence” and produced in a closed culture implacably hostile to dissent, affected Americans in profound economic, psychological, and social ways. Long-cherished individual rights were brushed aside, selectively, by this pretended clerisy through appeals to the greater health of the society and the common good, appeals which were frequently shown not to affect the behavior of the elite elect. All the while, politicians sought to deflect responsibility onto those bureaucrats.
Herbert Croly was perhaps the most important intellectual of Progressivism, next to Wilson. That seems odd, given the tortuous language and convoluted emotive passages that characterize his work. The Promise of American Life, published in 1909, is Croly’s most significant contribution to public debate, one that supposedly so influenced Theodore Roosevelt it is said to have been the catalyst for Roosevelt’s return to politics as a third-party “Bull Moose” presidential candidate in the 1912 election. Whereas Wilson dealt with constitutional structure and politics, Croly focused on political economy.
In Promise, Croly described himself and his vision as Hamiltonian. But it painted as “Hamiltonian” something that Alexander Hamilton would have foresworn. Croly argued for organization of the economy through coordination among large nationalized corporations, powerful and exclusive labor unions, and a strong and activist central government. This was the classic corporatist model of “rationalizing” the economy. It embraced the essence of fascist political economy and, with some tinkering, of socialist and Progressive systems. Whereas Hamilton proposed to use government incentives to unleash the entrepreneurial and inventive spirit of Americans to create wealth which ultimately would benefit all, Croly wanted the national government to throttle such entrepreneurial opportunity in favor of large entities, enhance the powers of the few, and use public policy to legislate a welfare state for the poor. However, haphazard social welfare legislation would be inadequate. As noted, the program had to be comprehensive of the whole of society. Independent small businesses, as elements within traditional American republicanism, were the bane of Progressive true believers in mass organization. Theirs would be a coalition of the wealthy few, an administrative elite, the working class, and the mass of poor against the broad middle.
Another book, Progressive Democracy from 1914, extended Croly’s Progressive canon. It rested on the usual Progressive premises, such as the omnipotent, all-caring, and morally perfect Hegelian God-state that would be the inevitable evolutionary end of Progressive politics. It posited the notion—so common in Progressive and other leftist theory—of stages of human social and political development that have been left behind and whose outdated institutions are an impediment to ultimate progress. Hence, Croly insisted, the Constitution’s structure of representative government and separation and division of powers needed to be, and would be, changed. Unlike the societal realities of the late 18th century which had produced American republicanism in the form of representative government within a federal structure, “In the twentieth century, however, these practical conditions of political association have again changed, and have changed in a manner which enables the mass of the people to assume some immediate control of their political destinies.”
The new political mechanism was direct democracy, the most authentic expression of popular will. It was beloved of leftists of all stripes. At least in theory. However, Croly considered reforms such as the initiative, referendum, primaries, and popular election of Senators to be misdirected and inauthentic if they were used only to restrict government power and to correct government abuses. As such, they were still shackled by old conceptions about the primacy of individual rights and by the suspicion of powerful government that had characterized the earlier period of Jeffersonian republicanism. “If the active political responsibilities which it [direct democracy] grants to the electorate are redeemed in the negative and suspicious spirit which characterized the attitude of the American democracy towards its official organization during its long and barren alliance with legalism [the Constitution as a formal system of checks and balances that controls the actions of the political majority], direct democracy will merely become a source of additional confusion and disorganization.”
There were, then, bad and good direct democracy. The good form was one that produced the proper, Progressive social policy, and accepted the dominance of powerful state organs which could accomplish that policy: “Direct democracy…has little meaning except in a community which is resolutely pursuing a vigorous social program. It must become one of a group of political institutions, whose object is fundamentally to invigorate and socialize the action of American public opinion.” Note some key words: A political system must be measured by “meaning,” such as the quintessentially Progressive “Politics of Meaning,” long associated with manifestos of the American Left. “Vigor” and “action,” two words that were markers of Progressive ideology and rhetoric at the personal, as well as the political, level. Wilson, the two Roosevelts, and John and Robert Kennedy strove mightily to present themselves as embodying those very characteristics, often to hide physical limitations. Finally, “social” or “socialize,” as the antidote to the traditional American insistence on the rights of individuals that were derived from sources outside the State and which trumped the demands of the collective.
In that “good” form, popular participation was, in effect, a thermometer to measure the temperature of the public’s support for an activist political program. Croly advised, “A negative individualistic social policy implies a weak and irresponsible government. A positive comprehensive social policy implies a strong, efficient and responsible government….A social policy is concerned in the most intimate and comprehensive way with the lives of the people. In order to be successful, it must rest on the basis of abundant and cordial popular support.” Instead of a structure constrained by the text and the received traditions of fundamental law, government would be limited only by vague measures of its policies’ popularity.
Despite Croly’s perfunctory disclaimer, popular participation was to be little more than a plebiscite on actions to be taken by a legislature otherwise unrestrained by the formal structures of the “Law.” “The government must have the power to determine the Law instead of being circumscribed by the Law,” he wrote in Progressive Democracy. As Croly—and Wilson— recognized, legislatures would not be up to the task of supervising such an increasingly intrusive paternalistic State. Hence, a powerful administrative apparatus was required. That signature component of the modern regulatory state—the vast, unelected bureaucracy—was necessarily beyond the control of the people. True, it might be a dictatorship of the technocratic elite, but it would be a benevolent one, we are assured, always loyally and selflessly laboring for our weal.
But like H.G. Wells’ society of Eloi and Morlocks in The Time Machine, the Progressive state was not as benign as its propagandists depicted it on the surface. The Progressives had a strong Darwinian bent. If Woodrow Wilson identified the State as an organism governed by the biological laws of Darwin, those laws raised some uncomfortable topics. Evolution and change are the constants of such a system; evolution requires adaptation to change. But in the State, unlike nature, adaptation could not be left to chance but must be directed rationally. Where survival of the fittest was the rule, only the fittest could rule. That the government was not under more direct control of the people was due to what Croly euphemistically described as the small size of the fund of social reason.
In view of that scarcity of social reason, Croly explained, “[the] work of extracting the stores of reason from the bosom of society must be subordinated to the more fundamental object of augmenting the supply of social reason and improving its distribution.” This was a task critical to the success of government unconstrained by the old Constitutional structures. “The electorate must be required as the result of its own actual experience and unavoidable responsibilities to develop those very qualities of intelligence, character, faith and sympathy which are necessary for the success of the democratic experiment.”
While Croly proposed that education would provide the means of human progress and the nurturing of social reason among the mass of people, there were those who were unfit for such efforts. Croly, like Woodrow Wilson and unlike William Jennings Bryan, believed in the need for state regulation of marriage and reproduction to combat crime and insanity and to promote the propagation of the truly fittest. When he was governor of New Jersey, Wilson signed a law of just such tenor that targeted various “defectives” for sterilization. Therein is mirrored one of the traits commonly attributed to the progressive intellectual. He professes to idolize humanity and the principle of popular government, but he despises humans and distrusts individual autonomy and political choice.
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United States Constitutional System and Armed Forces: Decentralized Power and Due Process vs. Stalin’s Centralized Control by Military
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 69: United States Constitutional System and Armed Forces: Decentralized Power and Due Process vs. Stalin’s Centralized Control by Military – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerIn the previous essay, the Stalinist era of Soviet history was juxtaposed against the concerns of the Founders as discussed in the Federalist Papers. In this essay, that same era is examined within the context of the United States Constitution as adopted and ratified, and to look at the “failures” of the Stalin regime vis a vis America’s system of constitutional governance.
But it might be a mistake to call Stalin’s reign “a failure,” per se. Certainly, it was a failure insofar as the adherence to democracy or the protection of individual rights. One can also say that aspects of Soviet policy as compared to the revolutionary goals of improving the lives of “the people” were abject failures.
But in terms of doing what Stalin and his comrades were intending to do regarding creating a state in which power was concentrated in the hands of a few? They were brutally successful at that. In fact, it was only Stalin’s death in 1953 at the age of 74 that brought an end to his proximate reign, and it was the chaotic aftermath in the wake of Stalin’s death (and the power struggle that ensued) that brought some reforms to the Soviet Union. It wasn’t any greater adherence to some kind of principle of individual rights and limited government.
Keeping in mind that the Soviet Union did have a series of “constitutions”—including one in 1924 and another in 1936, as Stalin had truly consolidated his power. While these constitutions claimed to guarantee some measure of rights (as well as outlining a series of social and economic entitlement programs), they left intact other political machinations guaranteeing one-party rule and the concentration of power in the hands of very few.
In fact, it was after the passage of the Soviet Constitution of 1936 that some of the bloodiest, most-horrifying years of Stalin’s reign began. The so-called Great Purge not only swept up millions of innocents, it also swept up many of the architects of the 1936 Constitution itself!
Two of the most-basic differences between our constitutional system and the Soviet system are the adherence to basic concepts of due process rights, as well as the assurance of open debate and the protection of dissenting views. The denial of both within the Soviet Union allowed for the government to use the military and secret police to brutally repress conflicting views as well as killing and imprisoning millions more in both secret prisons as well as a system of forced-labor prisons known as the “Gulag.”
The head of the secret police under Stalin, Lavrentiy Beria, was noted for saying, “Show me the man and I’ll show you the crime.”
In other words, we don’t need due process or a rule of law. If we want to arrest someone or otherwise suppress dissent, we can simply make them disappear by accusing them of a crime, and because we don’t need to actually prove that crime, they can be taken away.
It is worth noting that two American socialist activists, John Reed and Emma Goldman, both of whom were eager supporters of the 1917 Revolution (and were attempting to bring similar revolutionary fervor to the United States), became privately disillusioned with the direction of the post-Soviet era under first Lenin and then Stalin—most notably because of the lack of democracy in practice and the suppression of dissent.
Under the American system, power is diffused, checked and balanced. Under the Soviet system, especially under Stalin, power is concentrated—and the politics of the CPSU (Communist Party Soviet Union) ran through every element of daily life, with the Politburo (a central committee of the highest-ranking members of “The Party”) making policy and dictating that policy through the ranks of the Soviet bureaucracy.
Setting aside the secret police, at the time known as the NKVD (and later the KGB), the politics of communism (and adherence to party doctrine) also played a role in military command.
Under our system, the military is meant to be entirely free from the political machinery of our system—our military personnel are supposed to advance on their own merit, the military is an instrument of policy, and the guidance of that policy is balanced between the legislative and executive branches. The President is Commander-in-Chief, but only Congress can declare war, for instance.
During the Soviet era, not only was the military largely under the direction of the Premier (the Soviet leader, also known as the General Secretary) and the Politburo, but each individual unit was given a “political officer,” known as a “Zampolit,” who would ensure that Marxist-Leninist dogma was injected into military affairs, as well as recommend advancement or punishment for military members depending on their adherence to that dogma.
It is also worth noting that the abuse of power by the NKVD and the interference by the Politburo in military affairs led to Field Marshal Gregoriy Zhukov’s support of Nikita Khrushchev in his bid for power following Stalin’s death, since Zhukov was deeply concerned for what might happen should Beria, the head of the secret police, gain greater power under Stalin’s successor, Georgy Malenkov.
In the end, it is not only our Constitution, but the perspective in how we approach government and governance in the United States, that fundamentally sets us apart from any communist or socialist system—whether under Stalin or Krushchev or Brezhnev, or in Maoist China or Castro’s Cuba or North Korea led by a Kim.
We approach governance from the perspective that rights are naturally occurring in man and that power flows from the citizenry to the government, whose powers are carefully enumerated and tightly constrained. These other systems believe that government grants rights to their citizens, and that absent action by that citizenry, it is assumed that the government retains all power to act.
There were no checks on power in Stalin’s USSR—millions died or suffered as a result of it.
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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From Liberty To Suppressed Dissent: Founders on Empowered Armed Forces While Preventing a Stalin-type Military Regime in America
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 68: From Liberty To Suppressed Dissent: Founders on Empowered Armed Forces While Preventing a Stalin-type Military Regime in America – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerThe reign of Joseph Stalin as the leader of the Soviet Union from 1922 until his death in 1953 made real just about every fear the Federalists and Anti-federalists discussed regarding concentrated power and government run amok during the debates over the adoption and ratification of the United States Constitution.
Through the entirety of the Federalist Papers, Alexander Hamilton, James Madison, and John Jay were constantly debating the balancing of interests, and the push/pull between a central government strong enough to both defend the nation of several states and address the common needs of those states, yet not so powerful as to run roughshod over the rights of those states and the residents therein.
Interestingly enough, the fact that our Founders were able to so openly debate the nature of the early American experiments in governance is completely alien to what occurred in the post-revolutionary transition from the formerly tsarist Russia into the Soviet Union first under Vladimir Lenin and then under Stalin.
Unlike the open debates of our Founders, and the reliance on the consensus-building governance of the American political system (built, as it was, on the examples of the liberalized British system), when the Tsar was overthrown and the soviet government established in Russia, the Bolsheviks immediately set-out to remove or otherwise neutralize opposition voices and consolidate power—and did so using a combination of military power and adopted post-tsarist secret police that could use force and intimidation to back-up any effort at domination.
So while Jay, Madison, and Hamilton could agree and disagree with one another in very public discussions, and the three of them could have ongoing conversations regarding the elements of the Constitution with their allies and opponents, Stalin’s system left it up to a handful of men to, literally, dictate the course of the Soviet Union in the years (and then decades) after the Russian Revolution of 1917—and then support their decisions with either direct military force or the force of their secret police, the NKVD.
The post-Revolution Bolsheviks had outlawed alternative political parties (even alternative factions of socialism, like the “Mensheviks,” the other dominant socialist viewpoint in during the 1917 Revolution), the dissemination of information was through the central government, and a vibrant system of “informing” on ones fellow Soviet citizens was created, in which people could be arrested upon the scant denouncing of their neighbors—or because the denounced said or did something that the central government did not like.
In Federalist 46, Hamilton summed up the general fear of constitutional skeptics in the late 18th century:
Interestingly enough, Madison had answered his own question earlier in Federalist 46 when he wrote:
But for a nation in which power is concentrated in the hands of very few, where dissent is suppressed beyond the point of imprisonment, and where that power is undergirded with both direct military force and the anxiety produced by the specter of secret police, there is no opportunity for “plans of resistance” or any concerted correspondence.
Worse, “dissent” could take many forms—and not even have to be proved, in order for punishment to be meted out. Stalin used his military to massacre civilians and put political pressure on Soviet republics and non-republic satellite states. And between Stalin and the head of the NKVD (the Secret Police), Lavrentiy Beria, millions more were simply “disappeared.” Beria is famous for the quote, “Show me the man and I’ll show you the crime,” a statement that will be discussed in the essay on Stalin and the protections guaranteed in the U.S. Constitution.
The Founders were rightly skeptical of what could happen when government power was not hemmed in by lawful constraints—and what happens when people are not able to debate and exercise true dissent. The warnings debated in the Federalist Papers were made manifest in the brutality of the Soviet Union’s Stalinist era and, frankly, through the oppressions of Nikita Khrushchev and Leonid Brezhnev, and other socialist leaders.
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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Founding Tradition of U.S. Armed Forces Protecting Liberty and Prosperity vs. Joseph Stalin’s Military Regime
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Eric Wise Essay 67: Founding Tradition of U.S. Armed Forces Protecting Liberty and Prosperity vs. Joseph Stalin’s Military Regime – Guest Essayist: J. Eric Wise, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Eric WiseThe Red Army from the time of its formation through its incarnation as the Soviet Army and to the time of its collapse was forever fighting wars. From 1917 to 1922 the Red Army fought numerous civil wars for Soviet dominance of Russia, as well as the Polish-Soviet War to mop up the residual Polish state following the First World War.
But by 1922, the Soviet communists realized that a large army taxed the ambitions of the new Soviet state and so reduced the Red Army to a standing army of 800,000.
Leader of the Soviet Union, Joseph Stalin, would take this small army and build it to a strength of 29 million at the end of the Second World War. This massive army would after the Second World War become the Soviet Army which would be reduced to a leaner 11 million man army.
As the burden of maintaining a large land army grew, the Soviet Army shrunk to between 2.8 and 5.3 million. The final collapse of the Soviet Union occurred when the cost to the people of the Soviet Union of maintaining and equipping this army left them without consumer goods and in some cases necessities.
What is the key lesson of Stalin’s expansion of the military?
The first lesson, one supposes, is that war is not merely an instrument of the state but an instrument of the military. Stalin’s Soviet Union was perpetually at war. The Red Army battled Ukrainian insurgents, and was involved in the Spanish Civil War, the war in China, and fought with Japan. Before joining the Allies in the Second World War, the Soviet Army invaded Poland, partitioning it with Germany, and invaded Finland, with worse than mixed results. By the time of the German invasion of Operation Barbarossa, the Red Army was 6,000,000 men or more of whom a majority of whom were captured or killed by the invading army. The Red Army and then the Soviet Army served as a base of power for Soviet tyranny. And war was a means for the Red Army and the Soviet Army to demonstrate their importance to tyrannical power.
What can we as Americans learn from it?
Following the First World War, the United States promptly de-mobilized. The material prepared for war was scrapped and the United States Army was quickly reduced to a small corps of officers and enlisted men around which a larger army of citizen soldiers could later be built.
When the Second World War arrived, on December 7, 1941, the United States Armed forces numbered about 1.8 million. Four years later, in at the end of the war in 1945, the United States armed forces numbered approximately 12 million.
Following the Second World War, the United States armed forces were again demobilized, and by 1950 the core strength of the United States Army was about 600,000 men. With mobilization for the Korean War and the Vietnam War the armed forces of the United States numbered between 2.6 and 3.5 million. And following the Cold War the United States armed forces came down in strength to about 1.5 million men, the level it has remained for almost three decades.
President Dwight Eisenhower warned in his farewell address of a growing “Military-Industrial Complex” which threatened the liberties and prosperity of Americans. He meant that the military and the industries that supplied it had become their own interest group in American politics. The military and the industries supporting it promoted policies, and yes, wars, which served the interest of the military and the interests of power.
Abraham Lincoln, in his Lyceum Address, noted that “We find ourselves in the peaceful possession, of the fairest portion of the earth, as regards extent of territory…” He meant, among other things, that the United States is blessed to have a territory protected by two oceans and to have very little in the way of neighboring military threats.
It was this territorial advantage, as was noted in Federalist 29, which allowed the United States unlike European powers, to dispense with standing armies.
It is important to take pride in the patriots that serve our country in uniform. It is equally important to not conflate that pride with an empty nationalism that needlessly feeds a large military, a lesson Joseph Stalin teaches us.
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Founding Guard Against an Unchecked American Executive: World War I and Constraints by the U.S. Constitution on Presidential Powers
Stephen Tootle, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 66: Founding Guard Against an Unchecked American Executive: World War I and Constraints by the U.S. Constitution on Presidential Powers – Guest Essayist: Stephen Tootle, Stephen Tootle, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesWorld War I, known as the “Great War” by contemporaries, tested whether a Constitution written in the 18th century could handle problems presented by the 20th. President Woodrow Wilson found himself frustrated by the constraints put upon him by the Founders—just as the Founders intended. By limiting the powers of the executive branch and creating structures rooted in pluralism, the foundational wisdom baked into the United States Constitution limited President Woodrow Wilson’s attempts to undermine and undo our political, diplomatic, and constitutional traditions. Although the executive branch has broad authority in foreign policy and during wartime, its powers are not limitless. Those constitutional limits became even more important when a war was global in scope and America had a President who resisted them.
President Wilson came into the presidency hostile to the idea of enacting the Constitution as written or intended.[1] Unlike any previous President (save perhaps Andrew Jackson when grumpy), Wilson believed that the only limit on presidential power was “his capacity” and that his control of foreign policy was “absolute.”[2] After his election in 1912, he could test those theories in earnest. When the Great War began in 1914, Wilson thought he had discovered a way to use the war to transform the world for the better.
According to Wilson, all wars could be prevented with a world association to protect borders, ensure government control of arms manufacturing, and prevent aggressive war for territorial gain.[3] Believing that he could create world peace, Wilson stretched his constitutional wartime powers to their limits. His administration imprisoned political opponents, censored authors, closed newspapers, commandeered whole sectors of the industrial and agricultural economy, and planned for a future peace agreement at odds with our history, politics, culture, and Constitution.
Wilson’s plan (according to him) required the mandate of the American people in the 1918 congressional elections. With that in mind, he explicitly attacked his opponents and asked Americans to “sustain” him and “say so in a way which it will not be possible to misunderstand.”[4] They answered, but their answer did not sustain him. Republicans took both houses of congress.
Undaunted by this rejection, Wilson negotiated the Treaty of Versailles and went to the Senate for its ratification. Congressional hearings revealed the unworkability and radicalism of the treaty. Americans had some common-sense questions about ditching their traditions. Would Americans be obligated to automatically fight and die in wars anywhere and everywhere to protect any border? Would the people and Congress no longer have a say in the declaration of war? Would foreign nations have sovereign authority over American foreign policy? Could foreign nations preclude the United States from maintaining military preparedness or anticipating threats? Would an international body interfere with the individual rights of Americans? As in any debate, good points mixed with frivolous and absurd ones as the politicians with varying interests delayed ratification. The treaty may have been ratified if Wilson had consented to protecting the Constitution, but he would not. Wilson had said he would “consent to nothing” and that “the Senate must take its medicine.”[5] But that was simply not the case. Under the Constitution, the Senate would have its say.
President Wilson could command armies and negotiate the peace treaty, but the Constitution and its adherents ensured that he could not rule as a king or a dictator. The legislature—reflecting the conflicting interests and passions of the American people—used their constitutional powers to prevent Wilson from enacting his plans. In his last days in office Wilson lamented, “Men thought I had all the power. Would to God I had such power.”[6]
Modern readers may recoil at the abuses of the Wilson administration during the war, but someone with a broader global perspective should understand that the proper question should be, “Why were they not worse?” The pluralism inherent in our Constitution does not prevent evil from existing in the world—doing so would require
abolishing freedom– but it does check the spread of evils. Would-be dictators claiming the righteousness of their causes will always claim it is worth it to sacrifice our commitment to pluralism in the service of a grand solution to a grand problem. Our Founders understood that perfection in governance is an impossibility, but as Wilson’s example shows, even the would-be dictators can have their abuses limited. Despite Wilson’s machinations to the contrary, the Constitution limited his ambitions and left the United States standing firmly on its old foundation while the Old World Order collapsed.
[1] https://teachingamericanhistory.org/document/the-new-freedom/
[2] https://nationalsecurity.gmu.edu/wp-content/uploads/2019/03/Constitutional-Government-Chapter-III_-The-President-of-the-United-States.pdf
[3] Walter McDougall, Promised Land, Crusader State: The American Encounter with the World Since 1776, (Boston: Houghton Mifflin Company, 1997), 132.
[4] Woodrow Wilson, in John Morton Blum, Woodrow Wilson and the Politics of Morality, (Boston: Little, Brown and Company, 1956), 154-155.
[5] McDougall, 142.
[6] McDougall, 145.
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Foresight on Consequences of World War I: America’s Founding Proposal for a Constitution To Unite the States
Thomas Bruscino, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 65: Foresight on Consequences of World War I: America’s Founding Proposal for a Constitution To Unite the States – Guest Essayist: Thomas Bruscino, Thomas Bruscino, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesFederalist Papers 6 and 7 are at first glance an odd place to go when it comes to explaining the onset of World War I. Their topic is the threat of internal war among the states absent the adoption of the unified federal republic in the Constitution. But the fundamental principles expressed, especially that the “causes of hostility among nations are innumerable,” will resonate with generations of World War I students who have tried to catalogue the many causes of the Great War.
Publius’s point is that independent states will disagree about much and eventually fight over something. That was especially true in the semi-united states, with their close proximity to one another, the unclaimed and disputed lands to the west, their uneven economic power, and their shared and unshared debts. What is worse, in order to get an advantage in these disagreements, the states might enter into smaller alliances with each other or with European powers, thus becoming “prey to the artifices and machinations of powers equally the enemies of them all.”
Even the broadly democratic and commercial nature of the states would not help, despite the claims of “visionary or designing men, who stand ready to advocate the paradox of perpetual peace between the States, though dismembered and alienated from each other. The genius of republics (say they) is pacific; the spirit of commerce has a tendency to soften the manners of men, and to extinguish those inflammable humors which have so often kindled into wars. Commercial republics, like ours, will never be disposed to waste themselves in ruinous contentions with each other. They will be governed by mutual interest, and will cultivate a spirit of mutual amity and concord.”
If true, asserts Publius, then that should be true of all states, not just republics. But it wasn’t true. “Has it not, on the contrary, invariably been found that momentary passions, and immediate interest, have a more active and imperious control over human conduct than general or remote considerations of policy, utility or justice?”
There they are in Federalists 6 and 7, the many causes of the Great War laid out in principle: security and proximity, economic competition, domestic politics, imperial rivalries, confusing alliance politics, and honor and passion (in monarchies and democracies alike). Publius even anticipated and rejected the arguments of people like Ivan Bloch and Norman Angell that rational calculations about the destructiveness of warfare, especially in the interconnected modern economic world, would or should forestall war.
Given these great truths, Publius argued that the best hope for stopping war among the American states was to unite them under the proposed federal constitution. It did not always work—rebels literally drew states into a war against the nation. But it mostly worked. The overwhelming majority of the disputes among American states have not led to war.
Which leads to another question: was the proposed solution viable for the rest of the world’s nations? Did they just need to be gathered together in some sort of “Confederative Republic” to ensure peace?
In principle, maybe, and the principle is as far as Publius goes for the wider world. The Federalist Papers focused on the principles behind the best government for the United States, and on this issue they weren’t even sure the federal republic would work, let alone for the far more divided wider world. The Constitutional system Publius proposed was exceedingly fragile. That is why the principles elucidated in the rest of the Federalist Papers went far beyond the causes of war between states.
Perhaps that truth best resolves the seeming paradox of how Woodrow Wilson, an explicit critic of the Constitutional system, came to advocate for a seemingly Publius-like worldwide “Confederative Republic” in the League of Nations. Wilson wanted lasting peace among nations, and he believed that it was only possible if nations gathered together under a cooperative worldwide government of sorts. On its face, it appears that Wilson agreed with the principles of the Federalist Papers, but only on this narrow issue. But the Founders believed that the American Constitutional Republic only had a chance of preserving peace among the states if all of the principles undergirding it, those expressed across the Federalist Papers, remained in place.
Which brings us to Federalists 74 and 75, on the treaty making power of the president under the Constitution. For reasons explained in those documents, the executive needed a strong role in making treaties. As is often the case in the Federalist Papers, Publius argued for more expansive federal, and in this case, executive, power. But that was only because the countering argument gave exclusive power to the legislature. Publius never imagined that treaty making, or any other power, would go exclusively to the executive. There must be balance, or the whole fragile experiment would collapse.
This balancing principle, so essential to the Federalist Papers and the Constitution, Wilson could never abide. He wanted the power for himself. In this instance above all others, his reach exceeded his grasp. The Senate did not approve his treaty. The United States never entered the League.
The American decision to reject the League has been treated as a missed opportunity to preserve the fragile peace earned at Versailles. But Wilson was the master of his vision’s undoing, precisely because in envisioning the League he rejected the principles of the Federalist Papers. His League was not a balanced constitutional republic, but rather an oligarchy with the trappings of democracy, requiring the enlightened leadership of a few great men. First among those men, of course, would be Woodrow Wilson himself.
The League of Nations never had a chance to maintain peace, not because the United States foolishly rejected Wilson’s new utopian vision, but because the balanced American constitutional system saw it for what it was: an unbalanced system simultaneously so offensive to sovereign states and utterly toothless as to magnify all the worst rivalries among nations. It was the Old World Order made worse, with monarchies replaced by totalitarian dictatorships. Publius, in all of the Federalist Papers, knew better than to try that. Would that Woodrow Wilson have listened.
The views and opinions presented are those of the authors and do not necessarily represent those of the U.S. Army War College, the U.S. Army, or the Department of Defense.
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World War I and Commercial Rivalries: The American Founders on Solving Trade Disputes Threatening the Union
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 64: World War I and Commercial Rivalries: The American Founders on Solving Trade Disputes Threatening the Union – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathSupporters of the proposed United States Constitution of 1787 frequently warned that there was no mechanism under the Articles of Confederation to prevent what they saw as the inevitable commercial rivalries between the states from escalating into armed conflict. Such rivalries had begun to appear through protectionist trade laws enacted by various states. Another event was the dispute between Virginia and Maryland over fishing and navigation in Chesapeake Bay and the Potomac River. The end, the Federalists charged, would surely be the dissolution of the union into some number of quarreling confederations.
The Anti-federalists had several responses. First, Number IX of the Articles authorized Congress, on petition by any state, to provide for the appointment of a court to resolve any conflict between that state and another. Second, they pointed to the Mount Vernon Conference of 1785 which had settled those very divisive claims between Virginia and Maryland. Third, they declared that it was fanciful to claim that republics, especially those with commercial relations as close as those within the Confederation, would go to war with each other. The history of republics wagered against such eventualities, they asserted. As William Grayson, a moderate opponent of the Constitution, put forth at length before the Virginia ratifying convention, the states were bound by mutually reinforcing commercial bonds and interests. He sarcastically described the Federalists’ panicky and hyperbolic claims as predicting that Pennsylvania and Maryland would attack like Goths and Vandals of old, and that “the Carolinians, from the south, (mounted on alligators, I presume), are to come and destroy our cornfields, and eat up our little children!” Such specters were “ludicrous in the extreme.” Others repeated Grayson’s contentions even more forcefully, often combined with sneering attacks on the writers of The Federalist.
Alexander Hamilton, among others, rejected Grayson’s dismissal of the danger. In essay No. 6 of The Federalist, he asserted that immediate national interests, including economic advantage, are more likely to precipitate war than more general and remote objects, such as justice or dominion. He asked rhetorically,
It was as to these questions that Hamilton invoked the guide of experience for answers.
That experience he found in the history of Sparta, Athens, Rome, and Carthage. All of them he classified as republics, the last two as commercial republics. He detailed the numerous ruinous wars in which they engaged. Moving forward in time, he then indicted the commercial republic of Venice for its wars in Italy and the 17th-century commercial Dutch Republic for its wars with England and France. Britain came in for scorn as particularly bellicose for commercial advantage. Worse yet, Hamilton charged, the king was at times dragged into wars he did not want, by “the cries of the nation and importunities of their representatives,” so that there have been “almost as many popular as royal wars.” He singled out wars for commercial advantage between Britain and France and Britain and Spain. One of those wars between Britain and France overthrew a network of alliances which had been made two decades earlier. He acidly asked, “Is it not time to awake from the deceitful dream of a golden age, and to adopt as a practical maxim for the direction of our political conduct, that we, as well as the other inhabitants of the globe, are yet remote from the happy empire of perfect wisdom and perfect virtue?”
In addition to commercial incentives for war, Hamilton pointed to personal motives of rulers and other prominent individuals, or to intrigues hatched by influential advisers, as prompting wars between republics. Thus he blamed the Peloponnesian War, so disastrous to Athens, on the personal motives of the great statesman Pericles. England’s ill-advised war with France Hamilton assigned to the machinations of Henry VIII’s chief minister, Cardinal Wolsey, and his pursuit of political influence.
Whatever the merits of Hamilton’s predictably slanted analysis of specific historical events, his message was that political theory disproved by experience is not a sound basis for public policy. A more recent scenario which fit his skepticism about pacific republics was the Great War from 1914 to 1918, which led to the collapse of the 19th-century European political order and to revolutionary political and social change. The antagonists were the Central Powers of Germany, Austria-Hungary, and Ottoman Turkey against the Triple Entente of Britain, France, and Russia. The latter group was eventually joined by Italy, Japan, and the United States. Of the major participants, Germany, Britain, France, and the United States were commercial and industrial powerhouses. They were also outright republics or had sufficient political power vested in parliamentary bodies to qualify as quasi-republican constitutional monarchies. Each also had substantial overseas territories, Britain by far the most. Of the rest, Russia and Japan were rising industrial and commercial nations. In particular, Germany and Britain had considerable commercial interaction, but it likely was exactly that commercial and colonial competition which the British saw as a threat. The prewar German naval buildup did nothing to calm British nerves.
There was also a complicated system of alliances which emerged shortly before the war. This reshuffling of international arrangements changed the dynamics of the relatively stable post-Napoleonic international order in Europe which had even survived disruptive processes of unification in Germany and Italy and disunion in the old Austrian Empire. True, there had been revolutionary tremors and limited wars, such as between Prussia and Denmark, and Prussia and Austria, and the Franco-Prussian War of 1870-71. Skillful diplomacy, in particular by the German Chancellor Otto von Bismarck, had prevented any conflict of an existential nature from arising. Bismarck had isolated France after 1871 through alliances with Russia, Austria-Hungary, and Italy, first through the Three Emperors’ League, and then through the Triple Alliance of 1882 and the Reinsurance Treaty of 1887. Relations with Britain were preserved through family relationships and Britain’s preoccupation with her empire overseas. He had also smoothed frictions between the rival empires, Russia and Austria-Hungary, through the Congress of Berlin in 1878, and among various colonial powers through a conference in the same city in 1884.
Even after Bismarck was forced out of office, it appeared that strengthened international legal norms would prevent wars. International arbitrations settled disputes. Two Hague Conventions, the London Naval Conference of 1909, and the London Conference of 1912 convinced “the right kinds” of Europeans that large-scale war was anachronistic. The foreign offices of the various governments, staffed with forward-looking and educated internationalists, surely would extend the great-power stability of the 19th century’s Concert of Europe. Ignored was that these multinational conferences and conventions left some number of participants dissatisfied and nursing grudges. This was particularly true for the Balkan countries. While trying to establish their independence from the crumbling Ottoman Empire, they warred with the Turks, the Austro-Hungarians, and each other and resented their fates being controlled by larger powers. Over time, these perceived affronts to national honor during a time of heightened national consciousness overrode the rational self-interest served by commercial considerations. Moreover, various treaties and diplomatic agreements overlapped and indeed conflicted with each other. Alliances increasingly shifted around, which begot international uncertainty during an age of domestic demographic changes, increasing political militancy, and unequal industrial and technological prowess.
This new system of alliances had another potentially destabilizing element. It allowed the relatively weaker participants to act like big players on the international stage, counting on their more powerful allies to back them up. Instead, the bravado and exaggerated sense of national honor of less important states dragged the major powers into a disastrous conflict. Everything changed when a Bosnian Serb nationalist, supported by secret nationalist societies and Serbian military intelligence, assassinated the reform-minded presumptive heir to the Austrian throne, Archduke Franz Ferdinand, and his wife in Sarajevo, Bosnia, on June 28, 1914.
After some delay, during which it was hoped that the assassination might become just another deplorable act that would result in an appropriate punishment for the captured perpetrators, the Austrians responded. Having received some halting assurances from the German government that they would back Austria-Hungary’s response to Serbia, the Austrians sent an ultimatum to the Serbs. Serbia only partially accepted the Austrian demands, mobilized its army, and briefly sent troops into Austro-Hungarian territory. In quick response, Austria began partial mobilization of its army and, on July 28, 1914, declared war on Serbia.
At this stage, the conflict might yet have become another limited skirmish. But the Russian government, some of whose ministers had been informed of the plot ahead of time and whose military intelligence likely helped the plotters, had promised the Serbs that Russia would come to Serbia’s aid against any attack by Austria-Hungary. When Austria-Hungary began partial mobilization, Russia within two days ordered full mobilization of its forces. Fearing the large number of Russian troops, Austria-Hungary in turn mobilized fully. Germany, coming to her ally’s assistance, did likewise on July 31, 1914. At the same time, Germany issued a demand of neutrality to Russia. When Russia failed to acquiesce, a state of war existed on August 1. France, pursuant to a treaty with Russia from 1892, had rejected German demands for neutrality and had ordered a general mobilization the previous day. On August 3, 1914, Germany declared war on France. Britain, pursuant to her treaty obligations to France under the Triple Entente of 1907, declared war on Germany on August 5, 1914, after the latter ignored Britain’s demands for withdrawal from occupied Belgium. Italy, as was her wont during 20th-century wars, initially refused to stand by her treaty obligations to Germany and Austria-Hungary and eventually switched sides to the Entente.
The war took on a dynamic of its own. Occasional peace feelers went nowhere, in part because of objections by military leaders. There was, however, another equally significant hurdle, namely, political opposition based on the respective publics’ sentiments that their sacrifices demanded something more than a muddled armistice. It must be remembered that the war initially was very popular and welcomed with an almost giddy celebration of patriotic zeal by the citizenry of the combatants. Hamilton’s observation about monarchs having “continued wars, contrary to their inclinations, and sometimes contrary to the real interests of the state” due to public pressure, was being realized.
The Great War, infelicitously dubbed “the war to end all wars,” ended in the collapse of the Ottoman, Russian, German, and Austro-Hungarian monarchies. It also severely damaged the British and French empires around the world. The revolutionary chaos it unleashed and the national resentments its end ignited soon produced totalitarian movements and another world war. The tens of millions killed in those wars and the even higher number murdered by those ideological totalitarian regimes during the 20th century are a grisly monument to man’s potential to do evil, often cheerfully. The war should have put paid to the conceit that the world of human self-interest and passion can be readily subordinated to a legal artifice designed by a cadre of internationalists. Such idealism sounds marvelous in a university faculty lounge or in a graduate seminar in international relations, but, as Margaret Thatcher observed, “The facts of life are conservative.”
As fundamental challenges to the post-World War II United States-led international order have arisen over the past two decades, much debate has erupted over what system will replace it. The current conflict in Europe has once again tested the notion that commercial relations will make war obsolete. Russia has been dissuaded neither by Western economic pressures and commercial ostracism nor the military aid by NATO to Ukraine from taking a course of action which her government and people see, rightly or wrongly, as important to their national identity. One hopes that these broader fundamental geopolitical changes, such as the apparent emergence of a multi-polar international order, do not lead to the type of destruction World War I caused a century ago. But such hopes must rest on diplomacy based on experience, not on smug nostrums about pacific republics or the bonds of commerce.
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Constitution Framers, the American Civil War, and Preserving the Union Through Compromise, Virtue and Statesmanship
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Sam Postell Essay 63: Constitution Framers, the American Civil War, and Preserving the Union Through Compromise, Virtue and Statesmanship – Guest Essayist: Samuel Postell, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Sam PostellThe United States Constitution created many precautions against disunion and faction, but did not provide a failsafe solution; throughout the antebellum period statesmanship, compromise, and institutional development secured union until slavery and secession shattered the union.
As was argued in the last essay, the framers embraced the principle of union and framed a representative system to combat faction and disunion. As the Anti-federalists became increasingly weak after the ratification of the Constitution, Washington’s administration pursued policies to bolster union.
The Constitution created institutions meant to draw the country together and to prevent factions from controlling governmental power as was done under the Articles of Confederation. Publius argued that the Constitution embraced a number of improvements from modern political science to perfect republican government and cement union. The tools from modern political science were enumerated in Federalist 9:
a. The regular distribution of power into distinct departments.
b. the introduction of legislative balances and checks.
c. the institution of courts composed of judges holding their offices during good behavior.
d. the representation of the people in the legislature by deputies of their own election.
e. the ENLARGEMENT of the ORBIT within which such systems are to revolve, either in respect to the dimensions of a single State or to the consolidation of several smaller States into one great Confederacy.
However, Publius argued that there were further Constitutional precautions to retain the “excellencies of republican government” and “lessen or avoid” its imperfections. Throughout The Federalist, Publius explains additional precautions woven into the constitutional structure. He points to “auxiliary precautions” to act as a sort of safety net to ensure that the violence of faction is limited if it penetrates any branch of the federal government. The term “auxiliary precautions” echoes an earlier formulation in James Madison’s essay Vices of our Political System written at the behest of George Washington before the Federal Convention. In that essay, Madison argues that the Articles allowed minority factions to overrun the state governments. The essay made the distinction between the great desideratum[1] (creating a sovereign neutral and powerful enough to stop injustice without becoming tyrannical) and the auxiliary desideratum (getting the noblest characters to be elected, rule, and act according to proper motives). Thus, the most important object of the Constitution is the creation of an impartial and limited federal government to secure rights, and a secondary object is to ensure that the system is administered by virtuous citizens. Although Madison argued that creating a limited impartial government was fundamental, the framers believed that no free government could be maintained without proper administration from good rulers. The auxiliary precautions of the Constitution attempt to mitigate the harm that a faction might inflict if it gains power.
As was argued in the last essay, an important aspect of securing an impartial government is distributing and maintaining the partitions of power, which requires that weak branches be fortified and strong branches be weakened. When Publius considers the branch that most needs fortified against, he settles upon the legislative because it was often the legislatures that dominated the state governments under the Articles. In Federalist 48, he arrives at the conclusion that “in a representative republic, where the executive magistracy is carefully limited both in the extent and duration of its power; and where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence in its own strength; which is sufficiently numerous to feel all the passions which actuate a multitude; yet not so numerous as to be incapable of pursuing the objects of its passions, by means which reason prescribes; it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.” Notice the similarity between Publius’ description of a legislature in Federalist 48 and a faction in Federalist 10. A legislature has a “supposed influence over the people,” it is a joint assembly which gives it the convenience of “concert,” it is numerous and can become impassioned through proceedings, yet it is small enough to make plans to “approach its passion.” In other words, the legislature gives a faction the power to exact its designs if it can properly organize itself. Publius therefore sought to limit it with auxiliary precautions such as a bicameral house with short terms, staggered elections, and two relatively large bodies. Note that Publius’ assessment is almost the opposite of Alexis de Tocqueville’s, who fears a soft despot seizing executive power and capitalizing from the lack of civic virtue among the people.
Despite Publius’ fears about the legislature, throughout Washington’s first term it became clear that the legislature was too weak to organize itself and pursue an agenda; instead of driving legislation, it looked to the president. For instance, in 1791 Congress called upon Secretary of Treasury Alexander Hamilton to help frame economic legislation. The House spent several days debating the propriety of considering Hamilton’s economic plans but did not bother drafting or proposing any of its own. The numerous House of Representatives was so unorganized and heterogeneous that it was not capable of creating any bills to put on the floor for a vote. Perhaps Publius underestimated the natural strength of the legislature in large republics. Did he not understand the distinction between this federal legislature set over a large sphere and encompassing a variety of interests and the state legislatures encompassing small territories with homogenous interests under the Articles?
By Thomas Jefferson’s presidency the congress was no less dysfunctional. It was consensus that Congress was weak and it looked to the presidency or the cabinet to drive federal policy. How different was this arrangement from the oligarchies in the state legislatures Madison criticized under the Articles? How much safer were minority rights from factions under this Constitution where the executive wielded such power?
Why was the Congress so weak? President Jefferson noted that representatives “are not yet sufficiently aware of the necessity of accommodation and mutual sacrifice of opinion for conducting a numerous assembly.” An anecdote puts Jefferson’s criticism a bit more sharply: after Jefferson’s message in December of 1805 was referred to the committee of the whole, it took almost a full session to determine a single resolution. After the message was referred to the Committee of the Whole, a section on harbor defense was approved and turned to committee. The Committee on Defense determined measures, and then on January 23 the report was taken up by the Committee of the Whole. The Committee on Defense decided on a sum for harbor defense, the Committee of the Whole disagreed, then appointed a committee of two to call upon the president for more information. In February the discussion was resumed. The House passed two resolutions: one sum for harbors and one sum for gunboats. A committee was then appointed to draft a bill in accord with these resolutions. On April 15, the committee began its debate on the bill to appropriate the money for harbor defense. The process in 1805 led four different committees to discuss two resolutions for defense over the course of five months: and that was just one plank of a bill, considering one part of the president’s annual message, in just the House of Representatives! James Sterling Young notes that the biggest problem was that “Any legislator had the privilege of bringing forward, at any moment, such measures as suit his fancy; and any other legislator could postpone action on them indefinitely by the simple expedient of talking.”
In addition to institutional problems, the representatives lacked the revolutionary unity common at the time of the Founding. One representative noted, “The more I know of [two senators] the more I am impressed with the idea how unsuited they are ever to co-operate, never were two substances more completely adapted to make each other explode.” On one hand a New England representative claimed of his Southern colleagues that they were “accustomed to speak in the tone of masters” and that the Westerners had “a license of tongue incident to a wild and uncultivated state of society. With men of such states of mind and temperament, men educated in New England could have little pleasure in intercourse, less in controversy, and of course no sympathy.” A Southern representative remarked of his New England colleagues that “not one possesses the slightest tie of common interest or of common feeling with us.” In addition to feelings of discord, there were physical altercations brought about by the pains of living in common boarding houses. An incident is recorded in Miss Shields’ house when John Randolph, “pouring out a glass of wine, dashed it in [Rep. Willis] Alston’s face. Alston sent a decanter at his head in return, and these and similar missiles continued to fly to and fro, until there was much destruction of glassware.”
How were we to call ourselves a republic if the representative branch could not govern themselves at their own tables, let alone within the chambers of Congress? In Publius’ lifetime as in our own, Congress needed to develop institutional tools to overcome its weakness and become a functional branch of government. This was necessary if the ambition of the legislature was to become sufficient to check the ambition of the executive branch and preserve our republican form of government.
Throughout the Antebellum Period, Congress developed institutional tools which allowed it to enact legislation without relying solely on the executive branch for direction. The most important institutional changes from the American Revolution through the Antebellum Period were rules, committees, coalitions, compromise, and statesmanship through oratory. Although I will not have the length to discuss each development in depth, I will cover some of the most important developments in Congress throughout the Antebellum period.
Henry Clay was the most seminal figure in developing the institutional reforms which allowed Congress to assume the role of legislative leader. On November 4, 1811, Clay was elected Speaker of the House on his first day as a member and on the first ballot. He won seventy-five votes, while William Bibb won thirty-eight, and Nathaniel Macon won three. Mary Parker Follett remarks that “Clay was elected more than any other Speaker as leader of the House. Never before and only once since has a member been distinguished with the honor of an election to the chair upon his first appearance in the House.” The caucus that met before electing Clay Speaker was clear about its intentions. One of Clay’s partisans asserted that the House was in need of a Speaker who would “bridle” John Randolph. Another member said that “he (Randolph) disregards all rules.” Another man asserted that the Speaker “must be a man who can meet John Randolph on the floor or on the field, for he may have to do both.” Clay would eventually do both. One of Randolph’s favorite tactics was to bring his hunting dogs to the chamber where he would use them to intimidate other members and cause disruptions when proceedings were not to his liking. One of Clay’s very first acts as Speaker was to institute a rule barring animals from the chamber during business. In 1826 the two men dueled after Randolph insulted Clay, but both missed their marks, and unhurt met each other halfway to shake hands (something that the two could never manage to do politically).
Clay’s early rules were a sign of his prerogative as legislative leader: he believed that the majority in Congress, elected by a majority of the people, should be equipped with the tools to govern. This principle animated him throughout his congressional career, but also required that he attain more power as Speaker to silence the minority. Mary Parker Follett claims that Clay’s leadership aimed at producing order. She writes, “The new principles set forth during Clay’s long service were: first, the increase of the Speaker’s parliamentary power; secondly, the strengthening of his personal influence; and thirdly, the establishment of his position as a legislative leader.” Clay drew criticism as he increased his power but it was also clear that he was capable of passing policies that advanced the country into the boom of the industrial revolution.
The most radical change in the House of Representatives during the antebellum period was a change that still characterizes it today: the creation of standing committees to expedite business and develop policy expertise. Between the War of 1812 and the Civil War, the House increasingly relied on standing committees to debate and amend measures. As this reliance on standing committees steadily expanded, the House’s relationship with standing committees changed: measures were first referred to committee for consideration and only after being reported by committee were they debated by the full House. This expedited the law-making process because the Committee of the Whole allowed any member to debate on any bill and delay the majority; a liberty that the minority would slowly lose through the Clay Speakership. But how much did the committee structure grow during the Antebellum period? At the time of the Founding the House of Representatives had only one standing committee and relied on ad-hoc committees. By 1810 the House had 10 standing Committees. In 1816 the Senate established 12 permanent committees. By the Civil War the House had 39 standing committees and the Senate had 22.
The new developments in Congress ensured that independents like John Randolph would play an increasingly smaller role in policy-making and that coalitions would play an increasingly greater role. Henry Clay believed in a system animated by coalitions because he believed that such a system provided the opportunity for compromise and energy within the legislature. According to Clay, a coalition-led process of deliberation and choice, as opposed to a member-centered process, meant that creating consensus and collapsing distinctions about factious issues would be more common, and policies of pressing concern would be passed expeditiously. However, in organizing the Congress Henry Clay empowered it to act more efficiently. Did this new energetic Congress exceed the limitations Publius intended for the Federal Government?
In the early 1830s John Calhoun argued that the policies enacted by the energetic Congress harmed the interests of the minority; further, he argued that the people of a state should be able to nullify a federal law if its people deemed it oppressive. He argued that the energetic Congress, passing tariffs that harmed southerners and using federal funds for roads that empowered manufacturers at the expense of farmers, had wielded unchecked power to favor Northern interests. He wrote, “The Government of the absolute majority instead of the Government of the people is but the Government of the strongest interests; and when not efficiently checked, it is the most tyrannical and oppressive that can be devised.” He argued that the state of South Carolina should be able to nullify and ignore the Federal Tariff laws on imports. However, South Carolina never nullified the federal tariff; Andrew Jackson threatened to use the army to collect tariffs and congress passed a Force Bill allowing him to do so, and Henry Clay passed a Compromise Tariff which would reduce the tariff over time to appease the state of South Carolina.
The Southerners deemed tariff laws oppressive, but nothing stoked the flames of disunion more than Congressional action upon slavery in the territories. Although South Carolina never effectively nullified the federal tariff, over the next thirty years the Southern states developed a constitutional theory of secession to combat the power of Congress which they deemed oppressive of their property rights and economic interests. In 1850, Jefferson Davis declared in the Senate, “every breeze will bring to the marauding destroyers of southern rights the warning ‘Woe, woe to the riders who trample them down!’” He argued that Congress had used its power to the detriment of Southern interests, and that they deserved extra protection for slavery or they may secede from the union. Of slavery, he argued, “This is the most delicate species of property that is held: it is the property that is ambulative; property which must be held under special laws and police regulations to render it useful and profitable to the owner.” When Abraham Lincoln was elected, Jefferson Davis argued that Lincoln’s hostility toward the expansion of slavery allowed the Southern states to secede from the union. He argued “Secession belongs to a different class of remedies. It is to be justified upon the basis that the States are Sovereign. There was a time when none denied it.”
As Dr. Eric Sands articulated for this study, in his essay on the Civil War and consequences of secession, Lincoln argued that secession was unconstitutional and threatened the principle of self-government. He argued that there could be no form of republican government if the losers of an election were free to secede in order to avoid the consequences of unpopular political beliefs. He said that the union was Perpetual; he argued that the Constitution intended that the union endure forever, and that the doctrine of secession was contrary to the most fundamental premise of the Constitution.
However, Davis and others argued that over the course of the Antebellum Period, the federal government had expanded its Constitutional power and used those powers oppressively toward the interests of the slave states. Lincoln argued that Davis was wrong; States were not sovereigns under the Constitution, and the common interests of union superseded their individual interest in the expansion of slavery and the protection of slaves as property.
Despite the philosophic differences, it is clear that as Congress lost the ability to collapse differences through virtue and statesmanship, and promote union through compromise, the union was destined to dissolve. The framers admitted that this was the case; that representative self-government relied upon a functional representative branch of government that protected and advanced the interests of citizens. Is our Congress capable of compromise, statesmanship, and advancing our common interests today? Perhaps the tools that quelled disunion throughout the Antebellum period could help solve our congressional crisis today.
[1] Desideratum is Latin, meaning “thing desired.”
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Key to Subverting the Violence of Faction: America’s Founding Design of the United States Constitution Against Disunion
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Sam Postell Essay 62: Key to Subverting the Violence of Faction: America’s Founding Design of the United States Constitution Against Disunion – Guest Essayist: Samuel Postell, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Sam PostellIn his First Inaugural Address, Abraham Lincoln argued that “the Union is much older than the Constitution.” What did Lincoln mean when he spoke of the Union? The Declaration of Independence explains that the Americans were “one people” because they were providentially, philosophically, and hence politically united. In addition to referring to the Americans as one people, it also references the American people using the collective “We.” Furthermore, the document calls itself a “unanimous” declaration of the “united” States of America. The authors saw the separate colonies as previously united, and unanimity implied that they were “of one mind.” In short, the Declaration expressed that the Americans were one people capable of governing themselves. Because the Americans were united as one people and were arbitrarily ruled by another, the Declaration asserts that they have a duty to assert their independence by appealing to their Creator and natural laws of justice. Therefore, the principle of union, the rallying cry of Abraham Lincoln, Daniel Webster, Henry Clay, and George Washington, is one of the bedrock principles of the American founding.
Whereas the Declaration expresses the existence of unity at the time of the founding, many of the Federalist Papers contemplate the importance of a strong or firm union. For example, Federalist 9 asserts in its first line that “A FIRM Union will be of the utmost moment to the peace and liberty of the States, as a barrier against domestic faction and insurrection.” Additionally, Federalist 10 asserts that “Among the numerous advantages promised by a well-constructed union, none deserves to be more accurately developed than its tendency to break and control the violence of faction.” In other words, at the time of ratification, one of the most salutary effects of the United States Constitution was that it bolstered the existing unity between the American people and thereby combated faction and disunion. As discussed in previous essays, in Federalist 9 and 10, Publius argued that the particular kind of union created by the Constitution was the key to subverting the violence of faction, the primary vice of the political system under the Articles of Confederation.
But union was not only an important principle at the time of the signing of the Declaration and the ratification of the Constitution. The Declaration sets forth “self-evident truths” that are meant to guide the American people through time. The principles explicitly enumerated are “life, liberty, and the pursuit of happiness.” However, in Washington’s Farewell Address he emphasized the principle of “union” as that which secured the principles of the Declaration. In the Farewell Address, Washington counseled the American people: “The unity of government which constitutes you one people is also now dear to you. It is justly so; for it is a main pillar in the edifice of your real independence, the support of your tranquility at home, your peace abroad, of your safety, of your prosperity, of that very liberty which you so highly prize.” He told the people that “it is of infinite moment that you should properly estimate the immense value of your national Union to your collective and individual happiness; that you should cherish a cordial, habitual, and immovable attachment to it; accustoming yourselves to think and speak of it as of the palladium of your political safety and prosperity; watching for its preservation with jealous anxiety; discountenancing whatever may suggest even a suspicion that it can in any event be abandoned; and indignantly frowning upon the first dawning of every attempt to alienate any portion of our country from the rest, or to enfeeble the sacred ties which now link together the various parts.” In other words, Washington argued that union was the principle that secured the self-evident truths for which the Americans had fought in the Revolutionary War. According to Washington, the principle of union was necessary to secure the rights to life and liberty as well as the freedom to pursue happiness. Washington believed that if union failed, then the American experiment failed, and if the American experiment failed, then the prospect of liberty and self-government everywhere was in danger. Therefore, he urged the people to cherish the principle of union.
But why cherish union? Washington believed that patriotism and a dedication to union were necessary to preserve the blessings of the Revolution. For example, when he wrote to a society of Quakers who refused to defend the country in war, he told them that religious liberty was contingent upon the maintenance of the union. He wrote, “We have Reason to rejoice in the prospect that the present National Government, which by the favor of Divine Providence, was formed by the common Counsels, and peaceably established with the common consent of the People, will prove a blessing to every denomination of them. To render it such, my best endeavours shall not be wanting.” In the Farewell Address, Washington argued that the people ought to remain dedicated to the principle of union because “Citizens by birth or choice of a common country, that country has a right to concentrate your affections.” In other words, Washington argued that America was the common country of North, South, East coast, and unsettled West. Patriotism was a necessary virtue for men of all sections and all religious sects. Washington worried the rights for which men fought and died in the Revolution may be short lived without the virtue of patriotism and self-sacrifice for the principle of union.
Furthermore, Publius argued that the Americans were destined to become united. In Federalist 2, Publius argued that “Nothing is more certain than the indispensable necessity of Government.” But what kind of government was necessary? Publius argued that “It is well worthy of consideration therefore, whether it would conduce more to the interests of the people of America, that they should, to all general purposes, be one nation, under one federal government, than that they should divide themselves into separate confederacies, and give to each the head of each, the same kind of powers which they are advised to place in one national Government.” Publius believed that if the Constitution and the principle of union was rejected, then they would become like the “petty republics of Greece and Italy… kept in a state of perpetual vibration, between the extremes of tyranny and anarchy.” Publius foresaw that unless the Constitution be ratified and the principle of union secured, the country would become a loose confederacy like the European Union instead of a firm band of friends. Instead of creating a system of petty republics on the basis of confederacy, Publius argued that the Constitution would create a great republic on the basis of union. The Federalists argued that the constitutional union was fitting because the Americans had a common destiny, a common philosophy, and a common goal.
But why should the sections, which had different and contradictory economic interests, agree to subject themselves to a common government which would wield power? Isn’t it true that one section would, upon election, sometimes be given the opportunity to abuse their fellow country-men in different quarters, comprising different interests? Publius dealt with this problem in two ways. First, he argued that the American people were more similar than different. Second, the principle of federalism allowed the states to embrace their particular interests through state law, while allowing the federal government to legislate according to the “great and aggregate interests” of the country.
Publius argued that among the sections, the people were homogenous in their principles and character, even if they embraced different economic interests across the sections. He argued that Providence had prepared the American people for union. He wrote, “It has often given me pleasure to observe that Independent America was not composed of detached and distant territories, but that one connected, fertile, wide, spreading country was the portion of our western sons of liberty. Providence has in a particular manner blessed it with a wide variety of soils and productions, and watered it with innumerable streams for the delight and accommodation of its inhabitants.” Publius also remarked that “Providence has been pleased to give this one connected country, to one united people, a people descended from the same ancestors, speaking the same language, professing the same religion, attached to the same principles of government, very similar in their manners and customs, and who, by their joint counsels, arms and efforts, fighting side by side throughout a long and bloody war, have nobly established their general Liberty and Independence.” In short, Publius argued that “This country and this people seem to have been made for each other.” In Federalist 2, Publius admitted that among the sections there were “slight shades of difference.” However, he argued that the common character and principles of the Americans trumped the consequential differences of economic interest across the sections. Furthermore, Publius and the Federalists believed that the American people would triumph over their differences through their common councils, given enough time.
However, Publius argued that the principle of federalism allowed for harmony in cases where the diversity of state interests clashed; by limiting the federal government to specific and enumerated purposes, the Constitution embraces the “slight shades of difference” among the states. For example, in Federalist 10, Publius makes a distinction between “local circumstances” and “national objects.” He argued that the representative must balance his attention to the local concerns of constituents and the “permanent and aggregate interests of the community.” He remarked that “the federal Constitution forms a happy combination in this respect; the great and aggregate interests being referred to the national, the local and the particular, to the state legislatures.” In other words, Publius believed that a limited government, embracing the principle of federalism, could unite American citizens in common matters while allowing the citizens of states to legislate according to their particular circumstances, habits, and interests.
But what was the alternative to union? One unpopular alternative among the Anti-federalists was the creation of a confederacy consisting of equal powers for each section of the union. In Federalist 5, Publius argued that the creation of a sectional confederacy was both impracticable and unwise. He predicted that the different sections would become jealous of the most powerful, and would scheme against their neighbors. Rather than cooperation, there would be competition between the sections. Rather than trust, there would be skepticism. Publius writes, “Distrust naturally creates distrust, and by nothing is good will and kind conduct more speedily changed, than by invidious jealousies and uncandid imputations.”
So, what was Publius’ solution to the different passions and interests that tended toward disunion? Publius’ most famous solution is the creation of the extended republic wherein the factions are multiplied, dispersed, and allowed to drown one another out. But also important is the way in which power is divided. The division of power is best explained in Federalist 51, where Publius explains that in the Constitutional system “ambition must be made to counteract ambition.” Publius first sought to quell factious differences by diminishing them through the extended sphere, but then sought to vent factious passions through the system of representation. The Constitution controls the violence of faction in a number of ways (the most important of which is the creation of an enlarged sphere, or a large republic), but here are four general ways the Constitutional system intended to deal with the difficulty of sectional faction by allowing “ambition to counteract ambition”:
The Constitutional system successfully combated sectional faction under the pressures of the slavery question and Congress proved capable of balancing factious interests until states from the south rejected the Constitutional system and seceded from the union. In the next essay, I will consider how the Constitution and the Congress successfully combated the tendency toward disunion throughout the Antebellum period.
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The American Civil War and Consequences of Secession: Defining the Union, Role of the People and the States
Eric Sands, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 61: The American Civil War and Consequences of Secession: Defining the Union, Role of the People and the States – Guest Essayist: Eric Sands, Eric Sands, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThe Civil War was the greatest trauma to affect the United States in its history. The horrors of that conflict and the issues it brought to light continue to haunt the nation today and scholars continue trying to make sense of the turmoil that gripped the nation. One of the residual problems left over from that era is the doctrine of secession, or the ability of a state to rescind its membership in the Union and leave by itself or with other states. This, of course, is what eleven states tried to do in 1861 precipitating the bloody, awful war that followed. But is there a “right” of secession in the United States Constitution? How would a right of secession square with prevailing ideas of the Union? What response can be given to states claiming a right to secede from the Union? These and other questions required serious consideration in the 1860s and were answered most clearly by Abraham Lincoln.
The argument for secession begins with a claim that the states are the constitutive elements of the American political system. The states “made” the Union and thus never relinquished their essential sovereignty when the Constitution was formed. Under this view, the states were the parties to the original social contract that gave rise to the Union and thus are the entities that most legitimately judge whether the terms of that contract have been honored. When Southerners began to perceive that the terms of the contract were being violated over the slavery issue in the 1850s, a movement grew for the Southern states to withdraw their consent to be governed and to “peacefully” leave the Union to form their own political organization. In total, eleven states joined this movement and created the essential breach that inaugurated the Civil War.
President Lincoln was thrust into the role of defender of the Union and had to meet the secessionist argument head on. In his First Inaugural Address, Lincoln criticizes the secessionists for putting too much emphasis on the Constitution in articulating their understanding of the Union. According to Lincoln, the Union did not originate with the Constitution. Instead, “the Union is much older than the Constitution. It was formed in fact, by the Articles of Association in 1774. It was matured and continued by the Declaration of Independence in 1776. It was further matured and the faith of all the then thirteen states expressly plighted and engaged that it should be perpetual, by the Articles of Confederation in 1778.” Finally, the quest for “a more perfect” Union was embodied in the Constitution in 1787.
The Union, therefore, according to Lincoln, was perpetual. “Perpetuity is implied, if not expressed, in the fundamental law of all national governments. It is safe to assert that no government proper, ever had a provision in its organic law for its own termination. Continue to execute all the express provisions of our national Constitution, and the Union will endure forever.” The essence of secession is thus suicide, and it is inconceivable that the Founders would have incorporated such a concept into the constitutional system. No association of states could hold together if some of them were free to leave whenever the mood struck them. Moreover, secession would not leave the Union “more perfect;” it would leave the Union less perfect, which is not consistent with the intentions of the Constitution set out in the preamble. Accordingly, it cannot be said that the Founders endorsed something like secession in the constitutional system.
Even more, secession ignores the Declaration of Independence and the first words of the Constitution. The Declaration, when speaking of the need to separate from Great Britain, does not talk about colonies or states doing the separating. The language of the Declaration is that “one people” must separate. Clearly, then, the act of separating is not a function of state sovereignty but an act of popular sovereignty, a Union of people that has been forged in shared struggle and oppression and now seeks to liberate itself from tyranny. Likewise, the first words of the Constitution are not “we the states” but “we the people.” It is the people forming a new government out of their sovereignty, not the sovereignty of the states. The states, of course, are to be partners in this new government and significant roles are delineated to them in the constitutional system. But power is ultimately held by the people, the Union is made up of the people. The people may thus dissolve the Union if they ever chose to do so, but the states may not.
Lincoln reinforces these points in his Message to Congress in Special Session. He calls secession “sugar-coated rebellion” and denies any revolutionary character to it. Instead, it is a “sophism” deriving its “currency from the assumption that there is some omnipotent and sacred supremacy pertaining to a State – to each State of our Federal Union. Our States have neither more nor less power than that reserved to them in the Union by the Constitution, no one of them ever having been a State out of the Union.” The original thirteen became a Union before completing their separation from Great Britain. And the others came into the union from a condition of dependence. Thus, the reverence given to “states” is based on mist and shadows and does not match this history of the American regime. In short, the states only possess those powers granted to them by the Constitution, and this does not include the power of secession.
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Property Ownership and Political Stability: The U.S. Constitution’s Design to Secure Individual Rights the Communist Manifesto Abolishes
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 60: Property Ownership and Political Stability: The U.S. Constitution’s Design to Secure Individual Rights the Communist Manifesto Abolishes – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew Langer“[T]he theory of the Communists may be summed up in the single sentence: Abolition of private property.” –The Communist Manifesto, Chapter 2
In addressing the inequities of 19th century European society, two German philosophers, Karl Marx and Friedrich Engels, building on the writings of ancient Greek philosophers in creating classless and egalitarian societies and the philosophies undergirding experimental communal living in the 19th century (inspired by philosophers like Charles Fourier), first articulated the political and economic system we now know as “communism” in their “Communist Manifesto.”
At the time of publication of the Communist Manifesto’s first edition (1847), there had been scant movement around the world toward liberal democracy (political systems that value liberty and the protection of individual rights for all citizens)—there had been our own revolution in the United States, liberalization in the United Kingdom, and a series of revolutions in France that had seen the nation swing from monarchy to republic to empire to monarchy, back and forth for decades.
As such, tremendous inequality remained among the populations of most European nations—and, perhaps not ironically, it was the year after the Communist Manifesto was first published, in 1848, that there was a series of revolutions in nations across Europe. In no uncertain terms, they cannot be characterized as communist revolutions, but much more in the vein of classical liberalism, rejecting monarchies and hierarchical societies for those that more highly valued individual rights.
Nonetheless, to the uninitiated, the ideas enshrined in the Communist Manifesto can be tremendously alluring—the idea of a society without classes, where all goods and property are owned in common, where the balance between work and life can be described as “from each according to his abilities, to each according to his needs,” a statement written by Marx in his 1875 work, “Critique of the Gotha Programme.”
The concept of abolishing private property is a pernicious enough sentiment. But coupled with the idea of the community picking and choosing what some individual’s abilities are as well as determining what that individual’s needs are, and you have a political and economic philosophy that, when put into action in a society, inevitably leads to both oppression and poverty.
Bound up in Marx’s 1875 statement is the essence of force and coercion. Regardless of whether it is the “state” acting (and in Marxist philosophy, the state-centered transition phase between capitalism and communism is “socialism”), or the communistic society, you’re talking about force—the state determines what your “abilities” are, and you are forced to give of those abilities to society at large, regardless of your own feelings in the matter.
At the same time, the idea that the society then determines what your needs are, and that you’re unallowed to own property of your own, means that they can use the heavy hand of coercion to achieve their goals.
Moreover, the abolition of private property hamstrings the ability of a society to achieve economic prosperity and promotes political instability. Richard Pipes in his seminal work, “Property and Freedom,” looked at societies across history and, looking at how those societies protected private property, demonstrated the interrelationship between the protection of private property and the successful longevity of a nation. Peruvian economist and political scientist Hernando DeSoto, in “The Mystery of Capital” engages in something similar, but instead of looking through history, he looks at more recent examples around the world.
If you own your own private property, you can both use it to invest in some entrepreneurial idea, and you can utilize the property itself to support yourself and your family. Because you have a reliance on legal systems to protect that property, you can have hope in your future, and that hope creates that political stability.
The contrast is straightforward: if you don’t protect private property, if your society is centered on coercion and giving up your individual rights to the collective, this leads to oppression and economic stagnation. It is why just about every society founded on the principles outlined in the Communist Manifesto has failed, and others only remain because of brutal oppression or because they’ve adopted certain measures of state-sponsored capitalism.
Our own United States Constitution creates a classless society, starting with the idea that there is total equality among citizens. All of the rights (enumerated and unenumerated) apply to everyone, regardless of income level, race, etc. More importantly, it is predicated on the idea that those rights pre-exist the government, and aren’t bestowed by that government, that the Constitution itself is a restraint on government power and not the other way around.
Bound up in this is the 5th Amendment to the Constitution: “No person shall be deprived of life, liberty or property without due process of law… nor shall private property be taken for public use, without just compensation.”
This is a stark and fundamental departure from Marx and Engels—as opposed to abolishing private property, our Constitution makes it clear that government can only take private property from individuals provided that three things happen:
(1) The property is being taken for a legitimate public use.
(2) That due process is accorded to the property owner.
(3) That if 1 and 2 are adhered to, that “just” compensation is given to the property owner.
Setting aside instances in which these three tenets are abused by government, from a constitutional perspective, this is a clear departure from communist philosophy.
And it undergirds other rights as well. Keep in mind, the several constitutions of the Soviet Union, for instance, protected things like free speech. But since the constitutions of the USSR didn’t protect private property, that right was held cheaply since the state could just confiscate the presses of a critical press and threaten the journalists themselves if they didn’t adhere to the “party line.”
The same can be said of other individual rights: freedom of religion, freedom of assembly, the right to keep and bear arms. Besides outlawing most private gun ownership outright, the state could use their coercive powers to keep these other individual rights “in check.”
By guaranteeing rights, and recognizing that power flows from the people to their government and not the other way around, and that regardless of who you were all adults had the same rights, our Founders created the classless society Marx dreamed of. It was the flawed vision of Marx and Engels that failed, because they didn’t understand how their approach could be fundamentally abused and used to oppress, that spawned a nightmare.
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Contrasting Visions: The United States Declaration of Independence and Constitution vs the Communist Manifesto
90 in 90 2022, Jay McConville, 6. Guest Constitutional Scholar Essayists, Blog Essay 59: Contrasting Visions: The United States Declaration of Independence and Constitution vs the Communist Manifesto – Guest Essayist: Jay McConville, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Jay McConville, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesWhen I was a boy, I loved baseball. Unfortunately, having been born in Queens, New York, my chosen team was the NY Mets who, at that time, were the laughingstock of the major leagues. I still have faint memories of my father agonizing over their 89 losses in 1968, which, as bad as it was, was their best year since joining the league in 1962. At no time during those years had they finished better than ninth.
Then something amazing happened. In one of the greatest sports upsets in history, the 1969 “Amazing Mets” rose from the depths of the standings to become World Series Champions. I still remember that final game and cheering for all my favorite players. Yet, while they played amazing baseball, credit for the miracle season is most often given to Gil Hodges, the team’s manager. Joining only in 1968, he had quickly established a common vision for the team. His leadership enabled them to overcome their past, silence their critics, and play like champions. As announcer Curt Gowdy said during the last inning of the ’69 series, one word described the Mets: “inspired.”[1] It was Gil Hodges who inspired them, and his common vision put them on the road to success.
“From day one, spring training, Gil Hodges had a plan…He made each and every one of us better,” said outfielder Cleon Jones. Pitching Ace Jerry Koosman added, “Gil Hodges had one set of rules. There weren’t two sets of rules, and we each had to abide by those rules. That was a way of drawing teammates together.”[2] It worked, and the laughingstock team became World Champions.
You might wonder what this story has to do with the United States Constitution. Well, maybe not much. There is one thing, however, that I think it shows. An inspirational vision and a clear mission are critical to the success or failure of any organization. Successful leaders unlock the potential of others by articulating such a vision, one that can be shared by all and that is fair and equal across the board. History also tells us that the wrong vision, the wrong mission, can lead to disaster.
The Declaration of Independence and the United States Constitution established our nation’s vision and mission. The brilliant leaders who crafted those documents united a diverse people, established the most successful nation in history, and changed the face of government forever.
The vision so beautifully articulated in our founding documents was that all men were sovereign over themselves and equal before the law, and that because of this innate human value, governments were instituted among them only by their consent. It was a vision that had been long in the making. Thomas Jefferson, tasked by the Continental Congress to draft the Declaration in June 1776, had studied the writings of the Greeks, the Magna Carta (1215), English Common Law, Coke’s Institutes of the Laws of England (1600-1615), John Locke, and Montesquieu (1689-1755), among others. Like James Madison, John Adams, and the other Founders, he knew the importance of individual sovereignty in guarding against the depredations of the state. The vision in the Declaration was a bold assertion of those rights. “We hold these truths to be self-evident, that all men are created equal, and that they are endowed by their creator with certain unalienable rights…”[3] His phrase “life, liberty, and the pursuit of happiness,” which was lifted from John Locke’s Two Treatises of Government (1690) (“life, liberty, and estate”)[4], established that forever more the individual would be sovereign, protected from the tyranny of government by the fact of his humanity.
While Jefferson did not attend the Constitutional Convention in 1787, that vision was certainly reflected in the Constitution’s checks and balances, controls on federal power eventually acceptable to both Federalists and Anti-federalists alike. The critical nature of these was most famously, and most articulately, laid out in Federalist 51, and James Madison’s famous words: “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: You must first enable the government to control the governed; and in the next place, oblige it to control itself. A dependence on the people is no doubt the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”[5] Madison, a Federalist, advocated for a strong central government, yet recognized the risk in power being concentrated in the hands of fallible men.
Later, the Bill of Rights was added, providing ten amendments to further clarify the vision of a free and sovereign citizenry. The Anti-federalists insisted that those amendments be included, to document for all time the limited scope of government. This unifying vision survives to this day, enshrined in the due process protections in the 14th Amendment, and reflected in many Supreme Court decisions limiting the government’s reach.
That vision was both positive and unifying, and it brought our young nation together. The then national motto, adopted in 1782, reflected the belief that the individual was the core of the nation. E Pluribus Unum (from many, one) ushered in a dramatic change in the nature of governance. There was no king, no emperor, and no aristocratic class to rule. “We the people” were sovereign and independent, yet also tied together in a common pursuit.
And what was that pursuit? Equal in importance to the vision was a unifying mission: to achieve “a more perfect Union.” This would be accomplished by establishing “Justice,” insuring “domestic Tranquility” providing for the “common defense,” promoting the “general Welfare,” and securing “the Blessings of Liberty to ourselves and our Posterity.”[6] Articulated in the Constitution’s preamble, that is a mission worth serving, and one that hundreds of millions have pledged their lives to.
It is informative to contrast America’s vision and mission to that articulated in another extremely impactful document, the “Communist Manifesto.”[7] First published in London in 1848, it was translated into multiple languages, and, importantly, released in Russian in 1863. Like the United States’ founding documents, the manifesto ushered in a revolution in governance, which took hold first in the Soviet Union in 1917, and then spread throughout the world. While written mostly by Karl Marx, “its economic analysis was strongly influenced by [Friedrich] Engels’s ‘practical experience of capitalism’ in his family’s cotton firm…in 1842-44.”[8] It is therefore important to note that the world was experiencing extreme upheaval during the 1840s. Major social, political, and economic strife fed the development of the text, which explains some of its dark character. The serf societies were ending, farmers were moving to cities in response to the budding industrial revolution, the European aristocracy was losing its power to a rising class of business entrepreneurs, while everywhere workers struggled to find a place in new, rapidly changing, and often soul-deadening, industries. As historian of the manifesto, George Boyer, writes, “despite its enormous influence in the 20th century, the Manifesto is very much a period piece…It is hard to imagine it being written in any other decade of the 19th century.” Regardless, its impact was global and long-lasting. The 1917 Soviet Revolution adopted Marxism as its guiding vision, which eventually led to a rapid expansion of communism in the 20th century.
Yet what was that vision? Was it to inspire great things, like that of the Declaration of Independence and the U.S. Constitution? No, it was not. The Communist Manifesto[9] inspired, in a word, tyranny. A review of some of its text demonstrates why.
First, there was no message of equality of all men. The document focuses on class conflict, and the struggle of one class to destroy the other. “Society as a whole is more and more splitting up into two great hostile camps, into two great classes directly facing each other – bourgeoisie and proletariat.” The mission would only be achieved when “they” (the bourgeoisie) were destroyed.
Second, there was no commitment to individual sovereignty (life, liberty, and especially property) seen in the U.S. documents. “The abolition of bourgeois individuality, bourgeois independence, and bourgeois freedom is undoubtedly aimed at” and “…you reproach us with intending to do away with your property. Precisely so; that is just what we intend.” Gone was the concept of unalienable rights.
Third, the vision did not inspire unity, but instead served as a justification to use raw power to achieve dominance, power that would be wielded by the state. “The proletariat will use its political supremacy to wrest by degrees all capital from the bourgeoise, to centralize all instruments of production in the hands of the state, i.e., of the proletariat organized as the ruling class…”
And finally, the power of the state was to be absolute, and the revolution violent. “Of course, in the beginning this cannot be effected except by means of despotic inroads on the rights of property…”
In contrast to E Pluribus Unum, consent of the governed, equality before the law, protection of individual life, liberty, happiness, and property, and limits on the tyrannical impulses of government, the Communist Manifesto provided vision and mission focused on class conflict, rule by force, destruction of the opposition, the end of property rights and individual rights, all to be instituted by the unlimited “despotic” power of government.
The Victims of Communism Memorial Foundation has done extensive research documenting the damage done by tyrannical communist governments. They cite 100 million deaths at the hands of these regimes over only a 100-year span. Inspired and enabled by the Communist Manifesto, these regimes destroyed societies in a quest of a property-free utopia that was unachievable. In so doing they imprisoned, tortured, banished, and killed over a hundred million of their own citizens, while foisting war and chaos on the world. Thirty years after the fall the Soviet Union, “millions of people worldwide — one-fifth of the world’s population — still live under communist tyranny.”[10]
It has become somewhat fashionable to say that communism, or “socialism,” is a good idea (or theory) that could work if we just implemented it correctly. The Communist Manifesto gives lie to that claim. The vision is destruction, the mission tyranny. The result predictable. How many more need to die before we finally accept this fact?
It is also fashionable to criticize the United States for our failure to live up to our vision and mission. We are beset, and have been since our founding, with a multitude of problems and challenges. Slavery, social upheaval, war and civil war, domestic strife and crime, poverty, natural and manmade environmental disasters, depressions, recessions, and so much more. Have we failed in our mission? I think it is important to remember the 1969 Mets. In that miracle year, they gave up 1,217 hits, including 119 Home Runs, let in 541 runs, batted only .242, struck out 1089 times, and lost 62 Games. Yet they were World Champions.
Our shared mission is to “promote a more perfect union.” The word “more” is important. Our mission is not a utopian dream of perfection, instead it inspires us toward progress. Progress, not perfection. The road may be twisted and rocky, but we are well along it to establish justice, peace at home and abroad, improve the general welfare and pass the blessings of our liberty onto our future generations. Each generation’s task is to make our nation “more perfect.” For all our faults, our unifying vision and mission have set us apart among nations and made us the example for others to emulate.
What we need now is to trust in that vision, not abandon it for one proven toxic and deadly.
We need to rededicate ourselves to creating a more perfect union, not descend into the politics of resentment and strife found in the Communist Manifesto.
As future President, Calvin Coolidge, said in his “Have Faith in Massachusetts” speech in 1914, “We need a broader, firmer, deeper faith in the people – a faith that men desire to do right, …a reconstructed faith that the final approval of the people is not given to demagogues…but to statesmen ministering to their welfare, representing their deep, silent, abiding convictions.”[11]
E Pluribus Unum, Consent of the Governed, All Men Created Equal, and a More Perfect Union.
[1] Team of Destiny – The Final 3 Outs of the 1969 World Series, New York Mets, https://www.youtube.com/watch?v=JyDiuRDf918
[2] The Greatest Season: The 1969 Miracle Mets Trailer, MyMar Entertainment and Media, https://www.youtube.com/watch?v=KSh9XcgVrt0
[3] Declaration of Independence: A Transcription, National Archives, retrieved from https://www.archives.gov/founding-docs/declaration-transcript
[4] Bernstein, William (2004). The birth of plenty: How the prosperity of the modern world was created, McGraw Hill
[5] The Federalist No. 51, [6 February 1788], Founders Online, National Archives, https://founders.archives.gov/documents/Hamilton/01-04-02-0199. [Original source: The Papers of Alexander Hamilton, vol. 4, January 1787 – May 1788, ed. Harold C. Syrett. New York: Columbia University Press, 1962, pp. 497–502.]
[6] Constitution of the United States, Constitution Annotated, United States Congress, retrieved from https://constitution.congress.gov/constitution/
[7] Hutchins, Robert Maynard ed. (1989). Great books of the western world: Marx. Encyclopedia Britannica, Inc.
[8] Boyer, George (1998). The historical background of the Communist Manifesto. Journal of Economic Perspectives, Vol. 12, No. 4, Fall 1998, https://www.aeaweb.org/articles?id=10.1257/jep.12.4.151
[9] All quotations from Hutchins (1989), pp. 413-434
[10] Victims of Communism Memorial Foundation, https://victimsofcommunism.org
[11] Coolidge, Calvin (1914). Have faith in Massachusetts. Calvin Coolidge Presidential Foundation, https://coolidgefoundation.org/resources/have-faith-in-massachusetts/
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Avoiding the Dustbin of History: Failures of Communism and America’s Constitutional Foresight on Human Nature, Self-governance, and Civil Society
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 58: Avoiding the Dustbin of History: Failures of Communism and America’s Constitutional Foresight on Human Nature, Self-governance, and Civil Society – Guest Essayist: Tony Williams, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsEven decades after the fall of the Soviet Union and collapse of other communist states, the old canard that communism is a great idea that has never really been tried refuses to be thrown into the dustbin of history along with its failed regimes. Sympathizers with Marxist views cling to this belief despite all contrary evidence over the past century.
To give the view its due, however, the belief rests upon the presupposition that communism has only been introduced into largely agrarian societies rather than the advanced industrial societies rife with the class conflict and consciousness envisioned by German philosopher and communist Karl Marx. Therefore, orthodox Marxism has never truly been introduced by a violent revolution of the oppressed proletariat overthrowing the bourgeoisie. Nevertheless, this is because Marx’s progressive view of history and scientific socialism was simply wrong on several points and his theory had numerous flaws, particularly in its understanding of human nature.
The communists who followed Marxism believed that human nature is good and perfectible, and that human beings were capable of building utopias once oppressive institutions were destroyed and the internal contradictions of capitalism resulted in revolution. The Greek etymology of the word utopia means “no place.”
The American Founders were influenced by ancient and Christian thought that understood human nature to be imperfect (due to vice or sin) but capable of virtue. They consequently established a republican United States Constitution that controlled the government as well as the governed while protecting liberty. Separation of powers, checks and balances, federalism, bicameralism, and regular elections are proof that the Founders sought to limit the vagaries of human nature.
The other mistake of communism is the belief that humans are only shaped by an economic determinism and class conflict. This is an absurd reductionism. Human beings are much more complex creatures and are driven by politics, culture, religion, community, ties of kith and kin, and providing for their families rather than just economic inequality and alienation.
In Federalist #10, James Madison acknowledged that factions formed as a result of differences over property. The divisions over property were based upon “the diversity in the faculties of men” and their passions. He understood therefore that they would always exist. Madison noted that a zeal for political opinions, religious views, and a host of other things in society also divided people.
Madison stated, “There are again two methods of removing the causes of faction: the one, by destroying the liberty which is essential to its existence; the other, by giving to every citizen the same opinions, the same passions, and the same interests.”
The answer was that neither of these was desirable. So, Madison offered the alternative of controlling or mitigating the effects of factions by expanding the sphere of the republic and allowing differing views to flourish. Communists instead chose to destroy liberty and sought to force the people to have the same opinions through cult of personalities, cultural revolutions, reeducation and indoctrination, and rewritten history.
Communism has always been imposed by a small revolutionary intellectual vanguard upon a mostly unwilling peasantry. The Russian Revolution, for example, occurred when only perhaps two percent of the population was employed in industry, and Russian Marxist Vladimir Lenin himself was frustrated that the peasantry did not demonstrate any class consciousness. They were often strongly attached to the Tsar and the Russian Orthodox Church. Widespread opposition to the Bolshevik regime in the wake of the Russian Revolution resulted in a bloody civil war that left millions dead and the opposition summarily crushed.
Moreover, communism has never been led by the proletariat after the state “withered away” in Marx’s terminology. Instead, the communists formed one-party dictatorships and police states with unlimited power that were much more oppressive than the regimes they overthrew. Indeed, they unleashed unimaginably horrific genocides. Perceived enemies of the state and their families were executed and thrown into the gulag. Communist states starved people to death by the millions.
Contrarily, one of the main principles of the American Revolution was the transformative concept of popular sovereignty where the people rule. Elites certainly comprised the leadership of the American Revolution in the halls of legislatures and conventions and one cannot ignore slavery, but Founders created a republic in which the people elected representatives and could serve in different levels of government themselves. The Declaration of Independence was anchored in the principle of popular rule and right to overthrow a tyrannical government that violated their rights.
Marxism also got several things spectacularly wrong about humans as economic actors. Most fundamentally, people want to enjoy a higher standard of living and consumer goods rather than wanting to overthrow the free enterprise system. The massive food lines experienced by the people living under communism while party apparatchiks ate caviar in their summer dachas bred a lot more resentment than capitalist inequality.
In advanced capitalist societies, workers have generally enjoyed the protections of the social safety net—such as pensions, 401(K)s, Social Security, unemployment, health benefits—provided by employers and tax-supported welfare states. While these government programs expanded the purposes and scope of government beyond that envisioned by the Founders, they are much less intrusive than communist states. Moreover, industrial regulations have provided workers with numerous safety and health protections. Workers have also organized into labor unions to bargain or strike for better wages, hours, and working conditions or control over the shop floor. All these developments have negated scientific socialism.
Marx wrote the Communist Manifesto during some of the worst ravages of early industrialization including oppressed workers, unsafe and unhealthy conditions in factories and mines, great danger of mutilation and death, widespread environmental degradation, and great poverty and squalor in industrializing societies. In the twentieth century, those problems characterized communist regimes instead of modern capitalist societies. Meanwhile, capitalism has plainly lifted billions out of poverty through dynamic growth, innovation, and widespread prosperity.
Communism was responsible for an estimated 100 million deaths. It suppressed human flourishing in the arts and sciences by extinguishing liberty, created widespread suffering with decrepit economic systems, imposed crushing police states, and destroyed the institutions of civil society. Most of the American Founders understood that such utopian schemes were doomed by their flawed understanding of human nature, self-governance, and civil society. The American founding vision built a constitutional order with self-governance and a healthy civil society that allowed individuals to thrive.
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Folly of a Dictatorship Led by a Single Tyrant: The Undoing of Napoleon Bonaparte vs America’s Constitutionally Constrained Executive
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, James C. Clinger Essay 57: Folly of a Dictatorship Led by a Single Tyrant: The Undoing of Napoleon Bonaparte vs America’s Constitutionally Constrained Executive – Guest Essayist: James C. Clinger, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, James C. ClingerThe American Constitution was crafted in a deliberate way to prevent the failures of the government under the Articles of Confederation and to stop the harmful events that the Founders could see abroad and throughout history. Of particular concern was the need to empower the president to execute the law in a faithful manner. At the same time, the United States Constitution would limit executive power in order to prevent the rise of a dictator. Such safeguards have not always been found in the constitutions or governmental structures of other nations, and ambitious political figures, such as Napoleon Bonaparte, have taken advantage of every opportunity to amass more and more power, often at great cost to their own countries and also to the detriment of neighboring states.
The Articles of Confederation provided for virtually no executive authority. The American Constitution took another approach, both authorizing executive power but also constraining its exercise with a combination of institutional checks and balances. With the exception of the power to veto bills passed by Congress, which appears in Article I, the bulk of the presidential powers listed in the Constitution are found in Article II. This article is much more brief than the text of Article I, which applies to legislative powers, and approximately half of the text of Article II deals with qualifications for office and the manner of election, rather than powers and duties of the office. Some observers may infer from the small amount of verbiage in Article II compared to Article I that the legislature holds far greater power than the executive. In fact, James Madison wrote in Federalist #51, “In republican government, the legislative authority necessarily predominates.”[1] Other observers believe that while the actual text of Article II is terse, the specifically listed powers are broad, and additional powers may be implied from those that are explicitly stated. Within Article II, the president of the United States is “vested” with executive power. There has been considerable debate on whether that vesting refers to holding the explicit powers that are later listed, or whether this provides authority to carry out general powers that are deemed to be executive. What “executive” action actually entails is not completely clear. The word “executive” is derived from the Latin words ex sequi, which in English means to follow or to carry out.[2] This suggests that an executive, including a president, is primarily a follower acting on behalf of someone or something else. Nevertheless, many Americans think of the modern president as more of a leader than a follower.
The first powers listed in the first clause of Article II authorize the president to be commander-in-chief of the armed forces of the United States. It also indicates that the president “may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices.” Notably, the Constitution does not say that the president can tell principal officers what to do. The president is also given the power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment. The president is not given clemency powers for state offenses.
The second clause of Article II authorizes the president “to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.” By law, the Congress may “vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
These provisions, commonly known as the advice and consent clause, have been at the center of various controversies during American history. The clause indicates that the president may appoint “officers” of the United States, but it does not define what an officer is. Furthermore, while the clause explicitly provides for presidential appointment, it nowhere authorizes the president to remove the appointees that he has appointed.[3] As a practical matter, the federal courts have concluded that the president has at least some removal power implied by the executive powers vested in Article II,[4] but there have been a number of disputes about this question resolved somewhat inconsistently by the Supreme Court in cases such as Myers v. United States,[5] Humphrey’s Executor v. United States,[6] and Seila Law, LLC v. Consumer Financial Protection Bureau.[7]
The Constitution also gives the president the power to “make” treaties, subject to the approval of two-thirds of the senate, but it is not specific about the enforcement of treaties or their termination. During the War of Independence, the United States entered into a treaty allying itself with France. A few years later, after the French Revolution had become brutal and bloody, President George Washington issued a proclamation of neutrality, effectively voiding the treaty. This was controversial in its time, since the Constitution did not seem to authorize that sort of unilateral action, and also because there were many prominent figures in government, such as Thomas Jefferson, who were at least initially sympathetic to the French Revolution. In support of Washington’s action, Alexander Hamilton penned seven letters for publication making the case for the neutrality proclamation. Using the pen name, Pacificus, Hamilton sparred with James Madison, with whom he had written many of the Federalist Papers. Madison, writing under the name Helvidius, was recruited to oppose Washington’s position by Jefferson, who was then serving as secretary of state.[8]
Article II also imposes obligations upon presidents, as well as confers powers. Presidents are required to inform Congress “from time to time” of the State of the Union. The chief executive is also obliged to recommend, for the consideration of Congress, such measures which the president deems as “necessary and expedient.” When Congress is not in session, the president is authorized to call a special session of one or both houses of Congress. The president is also empowered to receive all foreign ambassadors. This has been construed to mean that the president has exclusive authority to recognize foreign governments.
Finally, Article II also demands that the president “take care that the laws be faithfully executed.” This appears to be a broad, encompassing authority and responsibility to carry out federal law, even those that are not supported by the president. While there is some inherent discretion in all enforcement, the president does not have any general authority to dispense with laws enacted by the legislature, as was the case in some monarchical systems.
The Constitution also constrains the chief executive and all other officers by providing for their impeachment and removal for the offenses of “Treason, Bribery, and other High Crimes and Misdemeanors.” This suggests that no executive can flout the law without consequences. It also provides for a means of removing an officer without resorting to a coup or assassination.
Many countries do not so carefully curb the powers of their executives, or they lack the will or the ability to enforce these constraints. In France in 1799, the newly established government, called the Directory, fell to a coup which was encouraged from within. The plural executive body was joined by a bicameral legislature made up of a Council of Five Hundred and a Council of Elders. One director, Abbe Emmanuel Sieyes, plotted a coup that would force out most of the directors and lead to the creation of a consulate, headed by a military leader as first consulate while he exerted actual control. Although not Sieyes’ first choice, the popular and successful General Napoleon Bonaparte was selected to serve as first consul. The general’s brother, Lucien Bonaparte, served as president of the Council of Five hundred, as expected to assist the coup. The coup succeeded in sweeping away the Directory, but Napoleon was not content to serve Sieyes’ interests. Very quickly, Napoleon rather than Sieyes was firmly in control, with no internal dissent permitted.[9]
Napoleon was not curbed by constitutional constraints upon his executive power. He suppressed the critical press and created his own propaganda machine.[10] The emperor was able to use his military to crush internal dissent, stop brigandage, and thwart foreign invasions.[11] Unconstrained by prior legal limitations on his conduct, the emperor designed his own legal system, the Code Napoleon, and imposed it upon his own nation. Ultimately, Napoleon’s own limitless ambition led to his undoing, but not until thousands had died in his pursuit of conquest. Of course, the United States has also had its own constitutional crises, most notably in the Civil War, which also cost much in blood and treasure. But under the Constitution, the United States has been freed of the folly of a dictatorship led by a single tyrant. The Constitution’s limits on the executive have thus far staved off that calamity.
[1] The Federalist Papers, Number 51
[2] Rohr, John A. 1997. “Public Administration, Executive Power, and Constitutional Confusion.” International Journal of Public Administration 20 (4/5): 887
[3] Tillman, Seth Barrett. 2010. “The Puzzle of Hamilton’s Federalist No. 77.” Harvard Journal of Law & Public Policy 33 (1): 149–67.
[4] Prakash, Saikrishna. 2006. “New Light on the Decision of 1789,” Cornell Law Review. 91:1021-1078.
[5] 272 U.S. 52
[6] 295 U.S. 602,
[7] 140 S. Ct. 2183
[8] Young, Christopher J . 2011. “Connecting the President and the People: Washington’s Neutrality, Genet’s Challenge, and Hamilton’s Fight for Public Support.” Journal of the Early Republic 31 (3): 435–66.
[9] Rapport, Michael. 1998. “Napoleon’s Rise to Power. (Cover Story).” History Today 48 (1): 12–19.
[10] Dwyer, Philip G. 2004. “Napoleon Bonaparte as Hero and Saviour: Image, Rhetoric and Behaviour in the Construction of a Legend.” French History 18 (4): 379–403. See also Forrest, Alan. 2004. “Propaganda and the Legitimation of Power in Napoleonic France.” French History 18 (4): 426–45.
[11] Devlin, Jonathan D. 1990. “The Directory and the Politics of Military Command: The Army of the Interior in South-East France.” French History, 4 (2):, 199–223. See also Brown, Howard G. 1997. “From Organic Society to Security State: The War on Brigandage in France, 1797-1802.” Journal of Modern History 69 (4): 661-695.
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Napoleon Bonaparte, the French Revolution, and America’s Protection of the Newly Formed United States Against Tyranny
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, James C. Clinger Essay 56: Napoleon Bonaparte, the French Revolution, and America’s Protection of the Newly Formed United States Against Tyranny – Guest Essayist: James C. Clinger, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, James C. ClingerThe United States and France had complicated and seemingly inconsistent relations in the years preceding and shortly following the American Revolution. In the 1750s, the American colonists and the British military fought the French in the French and Indian War. But in the 1770s, the French provided invaluable assistance to the American cause in the fight against the British in the War of Independence. During that war, the newly formed United States entered into a treaty allying itself with France, but after another revolution broke out in France in the 1790s, America’s first president, George Washington, issued a neutrality proclamation, effectively negating the treaty.
While the revolution raged in France, American politicians staked out positions of support or denunciation of the increasingly bloody regimes that replaced the government that had aided their cause in the fight for independence. A few years later, a new government and a new powerful figure, Napoleon Bonaparte, ruled over France. His rule made a considerable mark in the United States, for he was responsible for ceding enormous territory to the new nation in what has become known as the Louisiana Purchase in 1803. A few years later, the wars Bonaparte stirred up in Europe carried over to the western hemisphere in what is known now as the War of 1812, in which Americans once again fought the British, the primary enemy of France in that era.
The foreign affairs of these two nations are not so much the focus of this essay as they are illustrations of the implications of domestic events in each nation. During these years, the new nation of the United States and the relatively old nation of France each experienced dramatic changes in their constitutional development. These developments left the United States with an energetic yet institutionally constrained executive leading the government of a federal republic. In France, an emperor dominated the political scene of a unitary state in which the executive controlled both the legislature and the judiciary. This essay will explore how and why two nations with such intertwined histories took such divergent paths.
In 1984, the political scientist, Donald S. Lutz, published an article reporting his findings from research that examined which European authors were most frequently cited in the writings of America’s founders both before and after the revolution. The author most commonly cited was Charles-Louis de Secondat, Baron de Montesquieu, the author of a book published in English under the name The Spirit of the Laws.[1] In that work, Montesquieu developed a modern theory of what we now call the separation of powers. Montesquieu also made a case for an independent and secure court system, not subject to the will of the executive, the legislature, or any particular private interest. Montesquieu had significant impact in the design of the federal constitution, as well as the constitutions of many American state constitutions. He also had considerable influence in Britain. Ironically, his influence in his native France was not as deep or long-lasting as his impact abroad.
The first American national charter, The Articles of Confederation, did not display any interest in a separation of powers. The government established a unicameral legislative body which could, by committee, appoint one of their number as a president with little power.[2] There were no courts for the central government. State courts would handle legal disputes within their states’ boundaries, and the confederation congress would hear cases involving boundary disputes between states.[3] All of this changed with the ratification of the new constitution. While there was some overlap and sharing of functions between the legislative, executive, and judicial branches, to a great extent these institutions were kept separate, establishing a check against the mischief that might temporarily prevail in a single branch. The specific details of those checks will be discussed in the next essay. Suffice it to say now, that the institutional design of the constitution took into account the issues about which Montesquieu had written approximately a half century earlier.
In the Federalist Papers, the design of the United States Constitution was defended before a skeptical audience. James Madison, author of Federalist Paper #38, argued that no matter what flaws could be found in the new constitution, it was surely superior to the Articles of Confederation. In Madison’s words,
It is a matter both of wonder and regret, that those who raise so many objections against the new Constitution should never call to mind the defects of that which is to be exchanged for it. It is not necessary that the former should be perfect; it is sufficient that the latter is more imperfect. No man would refuse to give brass for silver or gold, because the latter had some alloy in it. No man would refuse to quit a shattered and tottering habitation for a firm and commodious building, because the latter had not a porch to it, or because some of the rooms might be a little larger or smaller, or the ceilings a little higher or lower than his fancy would have planned them. But waiving illustrations of this sort, is it not manifest that most of the capital objections urged against the new system lie with tenfold weight against the existing Confederation?[4]
One particularly noteworthy aspect of the new framework was provision for a president heading an executive branch of government. According to Alexander Hamilton, the constitution provided for “energy” in the executive through both the powers assigned to the office and the manner in which the officeholder would be selected. In Hamilton’s words, “The ingredients which constitute energy in the Executive are, first, unity; secondly, duration; thirdly, an adequate provision for its support; fourthly, competent powers.”[5] Under the Constitution, there is one chief executive, consistent with the unity principle. The president would serve fixed, four-year terms, consistent with the duration precept. Whether the support for the executive would be adequate would largely depend upon the appropriations of money by Congress. Hamilton believed that the powers vested in the president in Article II of the Constitution were “competent,” although at various times in history this claim has been challenged.
The political transformation of France took a different course. In 1789, while the American constitution was being drafted, France was a somewhat centralized monarchy, but with considerable autonomy exercised in its provinces. A National Assembly served as a constituent assembly, but it was unable to handle some pressing economic and political problems that were growing in the 1780s. The financial costs of war, including the American Revolution, had made the government almost bankrupt, despite the general trend of economic and population growth that the country enjoyed in prior decades. Crops failed in much of France in 1788, and prices for food and many other items spiraled up dramatically. The comptroller general of finances, Charles-Alexandre de Calonne, proposed a substantial tax increase on the upper classes to cover the budget deficit, but the National Assembly refused to approve this proposal, instead calling for the gathering of the Estates-General, which had not met since 1614. The Estates General was a body representing the clergy, the aristocracy, and the commoners. When the Estates General met in Versailles, the Third Estate, representing the commoners, declared itself the National Constituent Assembly and began to write a new constitution. King Louis XVI reluctantly accepted the new body and urged the nobles and the clergy to join it. Behind the scenes, the king sought out armed forces to oppose it.[6]
The new constitution did provide for some separation of powers in which the assembly was preeminent, but the king could appoint and remove his own ministers. The nobles lost their titles and hereditary privileges, and the franchise was extended to most adult men. The provinces lost much of their power to eighty-three newly created departements, which were roughly equal in size and uniform in their organization. Each departement was further divided into districts, cantons, and communes. Originally, each departement elected its own officials, but eventually these units became tools of the central government.[7]
The Assembly declared that all church property was at the “disposition of the nation.” The government then issued bonds, called assignats, that were secured by the value of the land. Later, all property owned by emigrants to France were also declared to be national lands. These securities were tradable, and functioned for a while as a paper currency. As the volume of assignats increased, so did inflation. By 1790, the Assembly required all sitting priests and bishops to take an oath of submission to the government. The bishops overwhelming refused to do this, but about half of the parish priests took the oath. Many clerics left the country, and about two-thirds of the country’s military officers resigned their commissions. As dissent became more prevalent, the government attempted to control the press. More radical factions began to subvert the role of the elected assembly, arguing that demonstrations, petitions, and public protests were superior methods of expressing the will of the people.[8]
Though his powers were limited, the king was still formally the head of state until August of 1792. The country was facing armed resistance from without and within, and more radical elements were gaining power. After militants stormed the royal palace in Paris, the Assembly suspended the king. Immediately afterward, more than half of the Assembly’s deputies fled the city. As Prussian troops advanced toward the capital, French troops marched out to face them. With much of the elected government gone and most of the military absent from the city, mobs took over the city’s prisons, held sham trials, and killed over a thousand inmates, almost half the local prison population. A National Convention was held, which had as its first order of business the determination of the fate of the king. The Convention unanimously ruled that the king was guilty of treason, and by a much closer vote ordered his execution. Later his Austrian-born wife, Marie Antoinette, was also sent to the guillotine. With each bloody act, the revolution generated more resistance, and as more officials fled the government, or were imprisoned for their perceived disloyalty, the more radical the remaining officeholders became. Ultimately, some of the more blood-thirsty of the revolutionaries, such as Maximilien Robespierre, fell out of favor and were executed themselves without trial.[9]
After Robespierre’s death, the National Convention designed a new, somewhat more conservative constitution in 1795. This new government had a bicameral legislature and a plural, five-member executive called the Directory. Each director was supposed to serve one-year terms. The short duration of the Directory and the plural nature of its membership were not in keeping with Hamilton’s views regarding an ideal executive branch. The new government was beset with dramatic inflation and serious military threats, as well as challenges from radical dissidents. The legislature ultimately forced out four of the five directors. The new directors looked to form a new kind of constitution to provide stability in 1799. This new constitution provided for three ruling consuls, but only the first held substantial power. The constitution was approved by plebiscite. As first consul, the directors eventually chose a young, military hero who had managed to lead French armies to victory despite a depleted officer corps and a mass of enlisted soldiers who were recruited through a very unpopular conscription process. This person’s name was Napoleon Bonaparte. He was initially named consul, but soon made clear that he wished to exceed his constitutional limits. By 1804, Napoleon was named emperor by several government agencies and subsequently was approved as emperor in a national plebiscite.[10] Napoleon was to wield more concentrated power than any extant monarch in the world. His rise to power demonstrates both the failure of France’s constitutional design and its commitment to enforce constitutional provisions.
James C. Clinger is a professor in the Department of Political Science and Sociology at Murray State University. Dr. Clinger teaches courses in state and local government, Kentucky politics, intergovernmental relations, regulatory policy, and public administration. Dr. Clinger is also a member of the Murray-Calloway County Transit Authority Board and a past president of the Kentucky Political Science Association. He currently resides in Hazel, Kentucky.
[1] Lutz, Donald S. “The Relative Influence of European Writers on Late Eighteenth-Century American Political Thought.” The American Political Science Review 78, no. 1 (1984): 189–97. https://doi.org/10.2307/1961257.
[2] Articles of Confederation, Article IX
[3] Articles of Confederation, Article IX
[4] The Federalist Papers, Number 38
[5] The Federalist Papers, Number 70
[6] Encyclopedia Britannica, French Revolution. https://www.britannica.com/event/French-Revolution. Accessed July 10, 2022.
[7] Encyclopedia Britannica, Restructuring France. https://www.britannica.com/place/France/Restructuring-France. Accessed July 10, 2022.
[8] Ibid.
[9] Ibid.
[10] Ibid.
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Rise of Napoleon Bonaparte and America’s Rejection of One-man Rule
Adam Carrington, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 55: Rise of Napoleon Bonaparte and America’s Rejection of One-man Rule – Guest Essayist: Adam Carrington, Adam Carrington, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesWorld history displays many instances of political rule by one person. We can point to ancient instances such as Julius Caesar or modern ones like Joseph Stalin. Napoleon Bonaparte ranks among the most famous of these men. He rose in the ranks of the French army during the 1790s by showcasing his brilliant military mind on the battlefield. He then expanded beyond a generalship to become France’s First Consul starting in 1799, then its Emperor beginning in 1804. Only his eventual defeat at Waterloo finally stopped his ever-increasing power.
Napoleon’s success in particular may tempt some to support the political rule of one. Unencumbered by others, this man first conquered France, then nearly did so to the rest of Europe. He instituted a legal code in his name that formed the basis for the modern French bureaucracy (and influenced many other governmental systems). One might see his example and think that one man can get much done if given the authority. We may not see Napoleon as acting justly. However, if the right man with the right principles got his power, then he could do much good.
We should resist this temptation. Our American system of government rejected rule by one man or even by one institution filled with men for a reason. Revisiting those reasons reminds us of the wisdom of that choice.
First, we must remember the famous quote of Lord Acton, a Nineteenth century British politician and historian. He declared, “All power tends to corrupt and absolute power corrupts absolutely.” The reason power tends to corrupt is not merely the enticement it holds to do ill. James Madison in Federalist #51 noted that men were not angels. He made sure to include in that appraisal those persons who hold governmental office. Power corrupts because human beings are fallible. They possess in themselves the temptation to abuse authority, to help themselves and their friends while hurting their enemies. The more power they can wield, the harder to resist the allure of using it for nefarious ends. Thus, one might better say that power reveals and nurtures corruption, a point the American Founders understood well and sought to address.
Our system of government does so by taking political power and dividing it in two ways. First, we divide government powers within a government. We call this mechanism separation of powers. We give one institution the power to make laws, another to enforce them, and still a third the authority to interpret and apply laws to legal disputes. The Founders hoped that this system would make for effective government that did good things. They also hoped the system would moderate the excesses of human nature. It would do so less by trying to remake human beings, something the Founders thought impossible and itself a temptation to exercise too much corrupting power. Instead, they hoped that they could channel human ambition, human love for power, in ways that offset one another. The branches would exercise checks and balances on their sister institutions. If one person or group gained too much authority, the others possessed means to keep us from falling into rule by one man or one group of persons.
But the rejection of one-man rule went beyond stopping moral vice from reigning. The Founders understood that brilliant humans come along from time to time. We were blessed during their time with a reservoir of such brilliance beyond a normal generation of human beings. Thomas Jefferson, Alexander Hamilton, and James Madison only scratch the surface of the number of great men who lived, thought, and acted in America’s fight for independence and her subsequent struggle to establish a lasting republic.
However, despite their best intentions, none of the Founders got everything right. They each had blind spots intellectually, as all humans do. Some even had moral ones to accompany the intellectual. However, we suffer little from those blind spots in our form of government. We do not because we do not have one founder. We have many. While some political communities had a first, sole lawgiver, we had the Continental Congresses and the delegates to the Convention of 1787. The Bible says that “iron sharpens iron.” So these men sharpened one another’s ideas, refining them in constructing our principles and our institutions. By that combined wisdom, they built a more just and a more lasting system of government. They did so in a way a Napoleon, ruling alone, could not.
That all said, we did have one man who towered above the rest during our Founding. That man was George Washington. He commanded our armies to victory in the Revolutionary War. He served as the unanimous choice of the country to be our first president. He could have been a Napoleon. He might have established himself as the only ruler of the country, making our system dependent on his person. He did not. Instead, he focused his mighty efforts always to build a system of government. He fought for principles that would outlive him and his generation. And, when he had finished his part of these tasks, he did what many found unthinkable: he gave up power. He returned to his home a citizen while the republic continued to operate without him.
This greatness we never saw in Napoleon. Upon his death, Napoleon is reputed to have said about France, “they wanted me to be their Washington.” In other words, they wanted him to exercise power, then willingly give it up for the country’s sake. This he did not do. It seems his own ambitions made such a choice impossible for him.
Each year, we celebrate our independence on the 4th of July. Let us express our thanks that we did not and do not live under a Napoleon, that we have and continue to reject rule by one person. And let us further celebrate our one indispensable man, the one who ruled and gave up that rule so his country would last. Let us celebrate our anti-Napoleon, our George Washington.
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American Founding Observations of the French Revolution That Influenced the United States Constitution and Governing
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Daniel Cotter Essay 54: American Founding Observations of the French Revolution That Influenced the United States Constitution and Governing – Guest Essayist: Daniel A. Cotter, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Daniel CotterWhile the drafting of the Constitution of the United States and the French Revolution overlapped, some of the wisdom and differences in the two revolutions help to explain a U.S. Constitution that is designed to prevent regime failure.
One element different between the two revolutions was geographic. Our American Revolution took place on our soil, far away and across the pond from our monarchy rulers, while the French Revolution took place within the country.
More fundamentally, the desired objectives were different in the two revolutions, and that in turn contributed to the ways in which the American Constitution contained provisions to address. The French focused on replacing or changing the existing government. The Americans, on the other hand, wanted to break away and form a government removed from Great Britain. With that in mind, starting with the Declaration of Independence, through the Revolutionary War, and culminating in the Constitution in 1787, the founding fathers inserted wisdom into the form of government and the United States Constitution to help prevent failures they observed in French government.
Learning also from the shortcomings of the Articles of Confederation, which were ratified in 1781 and remained in effect until the Constitution was ratified in 1789, the designers of the Constitution insisted upon branches and a robust system of checks and balances, something lacking in the French structure. The Federalist Papers #51 makes this of vast importance for consideration of the Constitution (emphasis added):
Conclusion
The United States Constitution’s wisdom is shown in many ways, including with the checks and balances that exist in the Constitution. The careful drafting in 1787 has helped to ensure a continued Constitution that has separations of powers built in and that has ensured that, unlike France and the uncertainty of its revolution and subsequent history, our grand experiment continues 235 years later.
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Ou La Mort or Deliberation: The French Revolution and the American Revolution
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Eric Wise Essay 53: Ou La Mort or Deliberation: The French Revolution and the American Revolution – Guest Essayist: J. Eric Wise, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Eric WiseThe motto of the French Republic is Liberté, égalité, fraternité, meaning liberty, equality, brotherhood.
What’s not to like? Pass the baguettes and butter.
It is derived from the motto of the French Revolution, which has a little something extra: Liberté, égalité, fraternité ou la mort.
Now, wait a minute. That means liberty, equality, brotherhood or death.
The French Revolution distinguished itself in the final category of its motto. No sooner had the First Republic been created than an eruption of accusations of treason, anticlerical sentiment, massacres and public executions took place. Not satisfied to overturn the ruling caste that had governed from Versailles, and the chateaus and churches of France, the revolutionaries set about to kill them.
In France 1793, no less than 16,000 death sentences were handed down, and 10,000 were sent to prison to die there, in most cases without a trial. Ou la Mort became the Terror. Little explanation is needed as to why “ou la mort” is now gone from the national motto.
The United States took a very different path. That is not to say there were not hard feelings. When the fighting ended and the American Revolutionary War came to a close in 1783, some 70,000 loyalists were expatriated to Britain and the remaining North American British colonies in places like coastal Quebec Prince Edward Island, and Nova Scotia. But they were not killed.
They were not even really persecuted. Always hungry for people, as soon as the loyalists left, the United States made efforts to recruit them back, supposing their industry and connections, harnessed in a spirit of reconciliation, could aid the new nation in finding its feet.
So, we ask ourselves, what was the difference between the French Revolution and the American Revolution that one should culminate in a river of blood and another in practical reconciliation and a compact, the United States Constitution, which has remained the charter of the new nation for 250 years?
The first place to look is the Declaration of Independence. The principles of the Declaration had percolated in American thought for 100 years or more before their expression in that revolutionary document. As Calvin Coolidge noted in his famous July 4 speech,
“A very positive echo of what the Dutch had done in 1581, and what the English were preparing to do, appears in the assertion of the Rev. Thomas Hooker, of Connecticut, as early as 1638, when he said in a sermon before the General Court that—‘The foundation of authority is laid in the free consent of the people.’ ‘The choice of public magistrates belongs unto the people by God’s own allowance.’”
The American Revolution was rooted not in deduction from mere abstract principle but by a process of induction from a practice spanning several generations. No understanding of the principles of equality and rights to life, liberty and the pursuit of happiness could be easily twisted into a murderous rage as would happen in France.
We see this in the words of Federalist #1:
“It has been frequently remarked that it seems to have been reserved to the people of this country, by their conduct and example, to decide the important question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.”
The meaning of the abstract principles of the Declaration of Independence was universally understood to impose a requirement of deliberation, not execution of enemies, on the new government. It was so understood because that was the habit of the American people to think of it that way. They would no sooner leave the house without their pants than think to solve a political problem other than by organizing, deliberating and deciding by some method of majority rule.
The new Constitution which was to be adopted constituted a second appeal to necessity. The Articles of Confederation had been, truly, an abject failure. The country was unable to control debtor and creditor contests and its economy was moribund, a victim of both the violence of these disputes and the weakness of its central government.
However, the new nation chose not to turn upon itself and its various perceived internal enemies but to debate over a new Constitution, to be ratified by consent through a new ratification process, that was not contemplated by the Articles of Confederation, and in fact violated its express terms. In Federalist #40, Publius emphasizes the need to alter and abolish the dysfunctional government by a process of consent rather than force.
From this spirit, a new government was brought forth based on the notion of deliberation and consent, structured around mechanisms to harness the baser incentives of men to promote the habits of deliberative government.
When Benjamin Franklin identified the new form as “a republic, if you can keep it” he implied that the continual fostering and renewal of the habits of deliberative government was the spirit of the American Revolution and the essential ingredient for the continued success of the United States.
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American Revolution Principles of Natural Rights Republicanism and Constitutionalism vs the French Revolution and the Reign of Terror
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 52: American Revolution Principles of Natural Rights Republicanism and Constitutionalism vs the French Revolution and the Reign of Terror – Guest Essayist: Tony Williams, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsAt first glance, the American and French revolutions seem to be closely connected in an “age of democratic revolutions.” The sister revolutions seemed to challenge and undermine monarchy in favor of popular self-rule and liberty. More fundamentally, however, the revolutions’ contrasting views of human nature shaped differing political philosophies, regimes, and cultures.
The American Founders’ thinking about human nature and government was guided by differing strains of thought from ancient philosophy, the English tradition, the British Enlightenment, and Protestant Christianity. As a result, they developed a realistic understanding of vice and virtue, sin and goodness. As James Madison wrote in Federalist #51, “What is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary.”
The French revolutionaries followed the thinking of the more radical French Enlightenment and particularly that of Jean-Jacques Rousseau. Rousseau believed that humans were naturally good and perfectible but were corrupted by social institutions including absolute government, the churches, and urban society; human beings would only be free and enjoy their natural equality by tearing down those institutions.
As the Declaration of Independence indicated, the American Founders believed the Lockean idea that humans had natural rights such as life, liberty, and the pursuit of happiness and were capable of governing themselves in a republic. However, their corruptible nature meant that checks and restraints were necessary. As Federalist #51 asserted, “experience has taught mankind the necessity of auxiliary precautions.”
Influenced by the thinking of Montesquieu and by their experience under the Articles of Confederation, the Founders built in numerous auxiliary precautions into their United States Constitution to divide and constrain power and protect against human ambitions and passions. They included the principles of separation of powers, checks and balances, federalism, and bicameralism in constructing their novus ordo seclorum, a “new order for the ages.” But it was a new order built upon the history, experience, and wisdom of the past.
The French revolutionaries created a very different kind of government and consequently had a different outcome. They sought to break with the corrupt government and religious institutions of the past that preserved the privileges and wealth of the royal government, the feudal nobility, and the clergy. The monarchy survived for only a few years after 1789. It was limited by the Declaration of the Rights of Man and then by a republican constitution until Louis XVI was executed in early 1793. The national legislature was a government lacking a system of constitutional separation of powers and other principles. Instead, the one-house legislature served effectively the only branch of government that would surmise the “general will” of an enlightened people.
For statesmen like the British Edmund Burke, who wrote Reflections on the Revolution in France, the outcome was all too predictable early in the French Revolution. The violence erupted almost immediately as revolutionaries tore down the corrupt institutions of the past. The revolution began with the storming of the Bastille on July 14, 1789, attacking that symbol of political repression. Paris quickly became an armed camp while in the countryside, peasants went on a rampage against nobles and their feudal privileges murdering them, burning down their estates, and destroying their titles in the Great Fear that fall.
After closing the monasteries and plundering their wealth, the government made the clergy agents of the state with the 1790 Civil Constitution of the Clergy. In 1792, the revolutionaries broke into jails and murdered thousands of priests, nuns, and nobles in an orgy of bloodshed and drownings.
Hundreds of thousands died in a French civil war when government suppressed revolts in the Vendee, and millions died across Europe when the French revolutionaries went to war to spread the fire of revolution to tear down oppression everywhere.
Finally, Maximilien Robespierre and the Committee of Public Safety guillotined some 3,000 “enemies” in Paris and had as many as 50,000 executed throughout France during the Reign of Terror from 1793-1794. It was not an aberration but rather a logical outcome of the violence directed against the old regime from the start of the revolution.
American Founders and citizens were deeply divided about the French Revolution in the early republic. Most Americans initially praised the French Revolution as an outgrowth of the American Revolution. Toasts were made, parades were held, and tri-color hats were doffed.
However, the American reaction to the French Revolution contributed to the growing political and ideological divisions in the early republic that led to the development of political parties in the United States. Federalists and Democratic-Republicans split over the foreign policy issue.
Thomas Jefferson, who was an observer and sometimes participant in early revolutionary events in France as a diplomat, was the most ardent supporter of the French Revolution. Taken by radical French Enlightenment thinking, he enthusiastically praised the execution of Louis XVI as a “criminal” and wrote his shocking “desolation letter” while turning a blind eye to the Terror.
Jefferson shockingly wrote with no small amount of hyperbole: “The liberty of the whole earth was depending on the issue of the contest….[and] rather than it should have failed, I would have seen half the earth desolated. Were there but an Adam and Eve left in every country, and left free, it would be better than as it is now.”
Other Founders were more sober in their assessment. Alexander Hamilton wished, “Would to heaven that we could discern in the Mirror of French affairs, the same humanity, the same decorum, the same gravity, the same order, the same dignity, the same solemnity, which distinguished the course of the American Revolution.”
On the other hand, John Adams had also been a diplomat in France and other European countries during the 1780s and was less swept up in revolutionary currents in France. Adams’ political writings through the 1780s focused on constitutional balance in the separation of powers. As early as 1790, he predicted that the unicameral French legislature “must involve France in great and lasting calamities” since it was rooted in a flawed understanding of human nature and political philosophy.
The American and French Revolutions left a contrasting legacy for the modern world. The American Revolution and the principles of natural rights republicanism and constitutionalism served as an exceptional model for the world. The French Revolution unleashed the forces of secular nationalism that shaped the violent European twentieth century.
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Upon a Need of Virtue to Self-govern: Penning a United States Constitution for a Free and Independent Nation
Andrea Criswell, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 51: Upon a Need of Virtue to Self-govern: Penning a United States Constitution for a Free and Independent Nation – Guest Essayist: Andrea Criswell, Andrea Criswell, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesWhen in the course of human life, it becomes necessary for a mother to dissolve the political bands between a child and their selfish ways, and to take full responsibility for civilizing her child and assume her powers within her home, the separate and equal station which the Laws of Nature and Nature’s God entitle them, a deep realization occurs, if she is not willing to bring virtue and civility to the next generation, no one will. This is the beginning of a republic, in each home. Ironically, this scenario leads the reader to believe that the mother is our government and the child is her citizens, and yet it is the other way around. The greatest attribute of the Constitution of the United States of America reflects her citizens as the parents, the givers of life, liberty and the pursuit of happiness.
How do people collectively provide for themselves liberty? An infrastructure, a culture valuing self-government is the only way. A republic at the core. As a human bears the image of their Creator in spirit and their parents in physical appearance, a republic mirrors its founders in the design of practical infrastructure as well as the “DNA” of heart and motive. In America, this “DNA” was the balance between tyranny and anarchy. Resembling homeostasis in the body, the boundaries given to the government by the Founders exemplified the potential for health for its people. Such is a republic, who welcomes this balance, not admonishing correction nor romanticizing chaos, experiences health and well-being.
Welcoming balance, the United States Constitution stands as a reminder that homeostasis can be achieved, not effortlessly, but attainable. It requires maturity to sustain the direction and maintain the right course. It requires self-government of individuals. Abstaining from the vices of power, the people directed by the Founders’ words stay the course. Imperfect men, who could not right all wrongs, understood that a virtuous nation required leadership from virtuous citizens. Three men considered, John Adams, Thomas Jefferson, and John Taylor of Caroline, were willing to protect the ramparts against the tyranny of England, for during their lifetime a government was born, one that would require maturing so that all its members, male and female, light skinned and dark skinned, Christian and non-Christian would find freedom on the same soil.
John Adams understood the unique situation in which they found themselves – to choose their own government. He passionately stated, “While I live, let me have a country, a free country.” It was this vision that defined his life. And yet, he was a Federalist, believing that “the greatest dangers to any polity came from unbridled democracy and an unrestrained aristocracy capable of becoming an oligarchy.” (1) He wanted a strong executive branch to steer the nation like a parent. In his “Discourses on Davila,” he recognizes both the need and the concern for ambitious men. As a republic, the people would parent, and yet Adams wrestled with the need for a strong head. Adams believed that America needed ambitious, determined men held in check by humility, to lead.
Thomas Jefferson understood that real power flows from the consent of the governed, as stated in The Declaration of Independence. A government, whose precedent is fundamental law, would simply reflect the will of the people. Without precedent, no other government in history had modeled natural law. So therefore, a prerequisite of government needed to be established, one in which divine law was part of the culture and understood by all. Believing that America needed a limited government, Jefferson’s greatest contribution was precision rhetoric, clearly communicating that the government would be limited through the state constitutions and the ratifying of the Constitution.
John Taylor of Caroline entered public service to uphold republican values. He did not agree with fixed social order, rather in popular sovereignty, the right each man possessed to govern himself. He was most concerned with a decline of virtue because of power, and held character as the sole anchor for the advancement of America. For Taylor, the laws of nature suggested political equality, and therefore all men were created equal. Defending freedom, Taylor focused on ending tyranny through his Anti-federalist semantics. Historically, there are those born to “hold a post” for others, while in their own right still very flawed. To his own demise Taylor profited from slavery, and while he considered it an evil, he did not consider ending slavery as part of popular sovereignty. Holding the post, Taylor believed America needed to be led by the laws of nature, sustaining personal sovereignty, and yet he did not have the revelation of sovereignty for all.
Disregarding the vision of Adams, the precision of Jefferson and the focus of Taylor would be to disregard the imperfect men who helped pen our most perfect document. The providential boundary lines of the Constitution recognize the need for a strong executive, legislative and judicial branch, all three balancing one another, and the Bill of Rights as the reminder that Congress shall not behave like an immature child. Although these men did not end slavery, they helped form the republic that would empower a people to do so. In the words of John Francis Mercer, a delegate to the Federal Convention from Maryland, said on the floor of the Convention, “It is a great mistake to suppose that the paper we prepare will govern the United States. It is the men whom it will bring into the government and interest in maintaining it that is to govern them. The paper will only mark out the mode and the form. Men are the substance and must do the business.” (2) Remarkable men, upholding a remarkable document, necessary then and now.
1. Taylor, James. “John Adams: Life Before the Presidency.” Miller Center, https://millercenter.org/president/adams/life-before-the-presidency. Accessed 20 May 2022.
2. Corwin, Edward S. “Thomas Jefferson and the Constitution.” CORE, https://core.ac.uk/download/pdf/217205672.pdf. Accessed 20 May 2022.
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Keeping a Republic: America’s Founders on the Role of Public and Private Virtue
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 50: Keeping a Republic: America’s Founders on the Role of Public and Private Virtue – Guest Essayist: Gary Porter, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary R. PorterNations rise and nations fall. Some would call this the cycle of life, writ large; others would simply offer that nothing is certain beyond death and taxes, certainly not the perpetuity of a nation. We are 235 years into this experiment in self-government we call the United States, and we’ve outlasted the average age of a republic, barely.[i] Some would thus suggest we are living on borrowed time. Are we? The Roman Republic lasted nearly 500 years (509 BC to 27 BC). Is it likely or even possible that ours will as well?
Alexander Fraser Tytler, aka Lord Woodhouselee (1747-1813) was a Scottish historian and professor at the University of Edinburgh. He identified stages which all societies will inevitably experience. A society will proceed “from bondage to spiritual faith; from spiritual faith to great courage; from courage to liberty; from liberty to abundance; from abundance to selfishness; from selfishness to complacency; from complacency to apathy; from apathy to dependence; from dependence back into bondage.” Not a very encouraging prediction.
If this is a true prediction of the life of a society (and I don’t suggest it necessarily is) it is tempting to place our American experiment somewhere on this timeline, perhaps we are currently progressing “from abundance to selfishness.” Whether America is “past its prime” has been the subject of debate for quite a while.
Certainly, there are clear signs of decline in America, but is this part of a predictable, inevitable cycle or is this a merely transitory observation?
America’s Founders certainly hoped their work would not be short lived. At the Constitutional Convention, John Dickinson had drafted an address to the delegates – which he appears to have never delivered – reminding them that: “We are not forming plans for a Day Month Year or Age, but for Eternity.” An eternity? Really? Would the proposed new plan of government they had labored over for four months even be given a chance at life? Nine states would have to ratify; would they?
A Republic, if you can keep it,” Benjamin Franklin’s immortal retort, suggests the Founders believed a republic was incapable of “keeping” itself, that human effort was required; but what sort of effort? By whom? How often? So much uncertainty.
One point they seemed to be in agreement on, one ingredient they believed was necessary for a nation’s longevity was virtue, both public and private. The Founders said this innumerable times in innumerable ways. A sampling:
“…[N]o free government, or the blessing of liberty, can be preserved to any people but by a firm adherence to justice, moderation, temperance, frugality, and virtue, and by frequent recurrence to fundamental principles.” George Mason, Virginia Declaration of Rights, Section XV [1776].
“Public virtue cannot exist in a nation without private, and public virtue is the only foundation of republics. There must be a positive passion for the public good, the public interest, honour, power and glory, established in the minds of the people, or there can be no republican government, nor any real liberty: and this public passion must be superiour to all private passions.” John Adams to Mercy Warren, 1776.
“Is there no virtue among us? If there be not, we are in a wretched situation. No theoretical checks, no form of government can render us secure. To suppose liberty or happiness without any virtue in the people, is a chimerical idea. If there be sufficient virtue and intelligence in the community, it will be exercised in the selection of these men. So that we do not depend on their virtue, or put confidence in our rulers, but in the people who are to choose them.” James Madison, Speech in the Virginia Ratifying Convention, June 20, 1788.
“[A] free government, which of all others is far the most preferable, cannot be supported without virtue.” Samuel Williams, A Discourse on the Love of our Country, 1774.
“It is certainly true that a popular government cannot flourish without virtue in the people.” Richard Henry Lee to Colonel Martin Pickett, March 5, 1786.
“It is substantially true that virtue or morality is a necessary spring of popular government. The rule, indeed, extends with more or less force to every species of free government. Who that is a sincere friend to it can look with indifference upon attempts to shake the foundation of the fabric?” George Washington, Farewell Address.
But before we go further, let’s ensure we have a common definition of the word “virtue.”
Webster’s 1828 American Dictionary of the English Language, the go-to guide for founding era definitions, contains ten different definitions of “virtue.” The one I believe the Founders most often had in mind, the third in Webster’s list, read:
“Moral goodness; the practice of moral duties and the abstaining from vice, or a conformity of life and conversation to the moral law. In this sense, virtue may be, and in many instances must be, distinguished from religion. The practice of moral duties merely from motives of convenience, or from compulsion, or from regard to reputation, is virtue as distinct from religion. The practice of moral duties from sincere love to God and his laws, is virtue and religion. In this sense it is true,”
If this “moral goodness” or “virtue” was so important to the success of a popular government, how was it to be instilled or created in the people?
First, by inspiring it in the people: “The only foundation of a free Constitution, is pure virtue, and if this cannot be inspired into our people, in a greater measure than they have it now, they may change their rulers, and the forms of government, but they will not obtain a lasting liberty.” John Adams, to Zabdiel Adams, 1776.
Second, through the education of children:
“Wisdom and knowledge, as well as virtue, diffused generally among the body of the people, being necessary for the preservation of their rights and liberties, and as these depend on spreading the opportunities and advantages of education in the various parts of the country, and among the different orders of people, it shall be the duty of legislators and magistrates … to cherish the interest of literature and the sciences, and all seminaries of them.” John Adams, Thoughts on Government, 1776.
“A Bible and a newspaper in every house, a good school in every district–all studied and appreciated as they merit–are the principal support of virtue, morality, and civil liberty.” Benjamin Franklin.
“It is an object of vast magnitude that systems of education should be adopted and pursued which may not only diffuse a knowledge of the sciences but may implant in the minds of the American youth the principles of virtue and of liberty and inspire them with just and liberal ideas of government and with an inviolable attachment to their own country.” Noah Webster, On Education of Youth in America, 1790.
“Since private and publick Vices, are in Reality, though not always apparently, so nearly connected, of how much Importance, how necessary is it, that the utmost Pains be taken by the Publick, to have the Principles of Virtue early inculcated on the Minds even of children, and the moral Sense kept alive, and that the wise institutions of our Ancestors for these great Purposes be encouraged by the Government. For no people will tamely surrender their Liberties, nor can any be easily subdued, when knowledge is diffusd and Virtue is preservd. On the Contrary, when People are universally ignorant, and debauchd in their Manners, they will sink under their own weight without the Aid of foreign Invaders.” Samuel Adams letter to James Warren, November 4, 1775.
Some parents took their educational responsibility quite seriously: “Our Little ones whom you so often recommend to my care and instruction shall not be deficient in virtue or probity if the precepts of a Mother have their desired Effect, but they would be doubly inforced could they be indulged with the example of a Father constantly before them.” Abigail Adams to John Adams, May 7, 1776.
Third, through their churches:
“It is the duty of the clergy to accommodate their discourses to the times, to preach against such sins as are most prevalent, and recommend such virtues as are most wanted. If publick spirit is much wanted, should they not inculcate this great virtue?” John Adams, Novanglus, no. 4.
Virtue was perishable; it needed to be continually “refreshed”: “When we are planning for posterity, we ought to remember that virtue is not hereditary.” Thomas Paine, Common Sense, 1776.
But even the best-laid plans to inculcate virtue in the people were not expected to have complete success, and the design of government must account for this: “A fondness for power is implanted, in most men, and it is natural to abuse it, when acquired.” Alexander Hamilton. “The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse.” James Madison, Speech in the Virginia Constitutional Convention, 2 December 1829. Even the most virtuous among them was to be watched for signs of moral decay: “The aim of every political constitution is, or ought to be, first to obtain for rulers men who possess most wisdom to discern, and most virtue to pursue, the common good of the society; and in the next place, to take the most effectual precautions for keeping them virtuous whilst they continue to hold their public trust.” James Madison, Federalist No. 57, 1788.
Americans today have lost sight of the idea of virtue; it is not taught in public schools, our government would like to count on it, but seems afraid to even mention the word, and our churches are fast joining the ranks of those who insist all truth is relative including moral truth. Violent crime is generally rising, private property disrespected and voices in the public square are becoming increasingly strident. If John Adams was right, that “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other,” there will come a time in this country, perhaps not long off, when the Founders’ Constitution will simply prove ineffective in governing us. There is still time to avoid that outcome, but it will require the conscious efforts of patriots across this great land.
“A people may prefer a free government; but if from indolence, or carelessness, or cowardice, or want of public spirit, they are unequal to the exertions necessary for preserving it; if they will not fight for it when directly attacked; …they are more or less unfit for liberty.” John Stuart Mill
[i] Alexander Fraser Tytler, aka Lord Woodhouselee, calculated the average term of a republic to be 200 years.
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America’s Founders on Virtue as Fundamental to Republican Government
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 49: America’s Founders on Virtue as Fundamental to Republican Government – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. Knipprath“Virtue” and “republic” have long been connected to each other among philosophers of politics. The connection was frequently asserted in the rhetoric of Americans during the founding. Indeed, it was while states were writing constitutions that these ideas were more rigorously investigated and an increasingly sophisticated understanding emerged. The most widely read source on the experiences of republics and the importance of virtue was Plutarch’s Lives, which contained the biographies of Greek and Roman statesmen. Many intellectuals also read primary sources, such as Aristotle, Cicero, and Polybius, and interpreters of those sources, such as Machiavelli, Montesquieu, and various 18th century English political essayists. These investigations led to a political conundrum. Most Americans believed that mankind’s actions were driven by base desires, such as avarice, gluttony, and lust. Yet the success of republics had always been said to rest on public virtue, the requirement that the rulers and the people overcome their passion for personal gratification and act for the benefit of the community, “res publica.” Moreover, the wisdom received from ancient writers postulated that public virtue was derived from private virtue. The task became to reconcile this tension between private passions and republican virtue.
Three ideological theories of republicanism emerged, with attendant differences in their conceptions of private and public virtue and the connection between them. These three conceptualizations had significant geographic roots. One was an American version of classic republicanism, which might be called puritan republicanism. It is “positive” republicanism. The proponents looked to the firm hand of government to promote both aspects of virtue, private and public, and to insure their continued interrelation. It was founded in the religious tradition and political experience of New England communities, although its influence was not confined there. One of the best exponents of that tradition and its republican significance was John Adams.
Another was agrarian republicanism, which coalesced somewhat later, and was rooted in the experience of the South, especially its largest and wealthiest state, Virginia. Agrarian republicans also accepted the need rigorously to inculcate private virtue, but they were less optimistic about the conviction that private virtue assured public virtue. At the very least, they were skeptical that sufficient public virtue might be realized among those who would gain political influence. That skepticism was particularly acute when the matter became who would control the distant general government and thus be most removed from effective supervision by the people.
Best, then, not to rely on virtue among the rulers, but to look for other means to limit their ability to cause harm to the republic. If private virtue of the ruler or the people was inadequate to assure public virtue, the rulers’ self-interest must be channeled to serve the public good. James Madison worked out these ideas in his constitutional ideology, which found its way into basic structures in the United States Constitution. Madison was not alone, and he was not the most rigorous expositor of agrarian republicanism. That title goes to John Taylor of Caroline.
A third approach was national republicanism, represented by Alexander Hamilton as its most prominent ideological proponent and George Washington as its leading public figure. In many ways their views complemented those of the agrarians that private virtue was a necessary but also a regrettably flawed guardian of the success of republics. However, there was a crucial difference. Government would have a much more active role in using incentives to create conditions through which republican virtue of the public sort might be fostered. Moreover, republican virtue was not limited to those connected to the land, but extended to those engaged in commercial and even manufacturing enterprises. Hamilton, after all, was not part of the landed gentry, like Adams, or the Southern planter class, like Taylor. National republicanism was based in the emerging commercial centers, especially those of the mid-Atlantic states.
John Adams’s major work on constitutional government and republicanism was A Defence of the Constitutions of Government of the United States of America, a treatise on the emerging American constitutionalism with its emphasis on checks and balances of governmental powers. But Adams was also a prolific writer of letters to numerous correspondents. Many years before he wrote in his 1798 response to the Massachusetts militia, “Our government was made only for a moral and religious people,” he wrote to the chronicler of the period Mercy Otis Warren that republican government could survive only if the people were conditioned “by pure Religion or Austere Morals. Public Virtue cannot exist in a Nation without private, and public Virtue is the only Foundation of Republics.” Sounding the theme of positive classic republicanism, he continued, “There must be a positive Passion for the public good, the public Interest, Honor, Power, and Glory, established in the Minds of the People, or there can be no Republican Government, nor any real liberty.” [Emphasis in the original.]
In light of man’s fallen nature and his helpless soul’s inclination to sin, a firm hand was needed. Hence, three New England states had an official church, the Congregational Church, heir to the Puritans. Moreover, a Stoic virtue of private simplicity and public duty was cultivated, not the least by intrusive sumptuary laws. Such laws, passed in the name of protecting the people’s morals and sometimes dressed up in broader cloaks of liberty and equality, restricted various luxuries and excessive expenditures on jewelry, clothing, victuals, and entertainment. Adams, in his 1776 book Thoughts on Government, touted the benefits of such laws, “[The] happiness of the people might be greatly promoted by them….Frugality is a great revenue, besides curing us of vanities, levities, and fopperies, which are real antidotes to all great, manly, and warlike virtues.”
The historian Forrest McDonald, in his invaluable book Novus Ordo Seclorum, provides details about the constitutional and statutory sources of such laws. For example, Article XVIII of the Massachusetts Bill of Rights urged a “constant adherence” to “piety, justice, moderation, temperance, industry and frugality [which] are absolutely necessary to preserve the advantages of liberty.” Legislators and magistrates must exercise “an exact and constant observance” of those principles “in the formation and execution of the laws.” None other than John Adams had drafted that document in the Massachusetts convention. Other states had similar provisions. At the Philadelphia Convention, George Mason of Virginia sought to grant Congress the power to enact sumptuary laws, but his proposal was defeated.
Adams also lauded laws that resulted in the division of landed estates, because he perceived such laws as promoting relative equality of property ownership. Adams termed it the “mediocrity of property” on which liberty depended. This sentiment, drawn from an ancient republican pedigree, put him in good company with American republicans of other stripes. Indeed, “agrarian republicans” were, if anything, even more militant than Adams in their adoration of land ownership as the bulwark of republican virtue and personal liberty. Thomas Jefferson spoke for most Americans in his 1785 book Notes on the State of Virginia, when he declared that “those who labor in the earth are the chosen people of God if ever He had a chosen people, in whose breasts He has made His peculiar deposit for substantial and genuine virtue.” He expressed similar views in other writings. During the debate over the subsequent Louisiana Purchase during his administration, Jefferson was able to overcome his constitutional qualms with the satisfaction that the United States had acquired sufficient land to guarantee its existence as a republic of yeoman farmers and artisans for many generations hence.
As a theorist of agrarian republicanism, Jefferson was thin gruel compared to John Taylor, a Virginian planter, lawyer, and politician, who served off-and-on as Senator. To distinguish his branch of the family, Taylor is usually referred to by his birthplace, Caroline County. The aphorism “That government is best which governs least,” has often been attributed to Jefferson, although it appears first in Civil Disobedience by Henry David Thoreau in 1849. If, however, one might at least grant Jefferson the same sentiment, this aphorism even better describes Taylor’s philosophy. In particular, his 1814 book An Inquiry into the Principles and Policy of the Government of the United States sets out a systematic philosophy for land as the basis for personal happiness and republican vitality. Land gives its owners sustenance and trains them to self-reliance, which produces independence, which, in turn, is the source of liberty. A key to maintaining that independence is the right to keep arms.
The (mostly) Southern agrarian republicans shared with their (mostly) New England classic republican compatriots a belief that widely-shared land ownership is most conducive to private virtue. However, they parted ways on the connection between private and public virtue as crucial to the survival of republican government. Taylor wrote, “The more a nation depends for its liberty on the qualities of individuals, the less likely it is to retain it. By expecting publick good from private virtue, we expose ourselves to publick evils from private vices.” While a republican system, as a whole, is strongest when it rests on a broad base of a virtuous and civically militant citizenry, it is risky to rely only on that condition to produce virtuous politicians. Homo politicus is better known for seeking power for personal gain and influence over others than for personal sacrifice and care for the general welfare. As described by the modern school of “public choice” theory, politicians are self-interested actors, whose actions are best explained by their number one goal, to get re-elected. In addition, the puritan approach of an intrusive government which would police private behaviors raised red flags for the agrarians.
Taylor and other agrarians distrusted government generally, but the more removed from direct and frequent popular control officials were, the greater the danger to the republican form. The good news was that sufficient public virtue could be produced even if, for whatever reason, private virtue was lacking in those who would govern. To that end, it became incumbent on those who framed constitutions to recognize the inherently self-interested nature of politicians and to harness that self-interest through constitutional structures which would simultaneously authorize and limit the power of government officials of all types. Politicians would “do the right thing” not because they were sufficiently trained to private virtue, but because it would serve their own self-interest in preserving their positions.
Taylor’s prescription was not novel. The Scottish philosopher David Hume began his 1742 essay, “Of the Independency of Parliament,” by declaring, “Political writers have established it as a maxim that, in contriving any system of government and fixing the several checks and controls of the constitution, every man ought to be supposed a knave and to have no other end, in all his actions, than private interest. By this interest we must govern him and, by means of it, make him, notwithstanding his insatiable avarice and ambition, cooperate to public good.” The works of the charismatic and often controversial Hume were well known to educated Americans.
James Madison expressed these sentiments in a famous passage in Number 51 of The Federalist:
Ambition must be made to counteract ambition. The interest of the man must be
connected to the constitutional rights of the place…. In framing a government
which is to be administered by men over men, the great difficulty lies in this:
you must first enable the government to control the governed; and in the next
place oblige it to control itself. A dependence on the people is, no doubt, the
primary control on the government; but experience has taught mankind the
necessity of auxiliary precautions.
Those “auxiliary precautions” were the structural checks and balances in the Constitution.
Various historians have noted the importance of Taylor’s contributions to American political theory, even lauding him as in some ways the best which America has produced. Although his vision was republican, it may better be characterized as a branch of classical liberalism or liberal republicanism. Note that the term “liberal” does not have the current political connotation. Unlike today’s version, the classic liberalism emerging during that period was directly tied to the individual’s liberty to live free from state-enforced mandates beyond the minimum needed for social stability.
Taylor was not the first skeptic about the classic Aristotelian and Ciceronian connection between private and public virtue reborn in the puritan republicanism of John Adams. The history of 18th-century Anglo-American ideas reveals influential predecessors, such as Bernard de Mandeville and, as mentioned earlier, David Hume. Mandeville wrote his satirical Fable of the Bees in 1705, a famous parody of English politics of the time. In the poem, he describes a thriving colony of bees, where each individual bee seeks to live a life of luxury and ease, a sentiment not disagreeable to Taylor’s Southern planter class. But this prosperous existence comes to an end when some of the bees begin to denounce the personal corruption caused by luxury and to call for a life of simplicity and virtue to be imposed. Many bees die, their hive becomes impoverished, and they live in a hollow tree, “blest with Content and Honesty.” He concludes,
Bare Virtue can’t make Nations live,
In Splendor; they, that would revive
A Golden Age, must be as free,
For Acorns, as for Honesty.
In short, personal vices, such as greed and ambition, generate public virtue of industriousness and prosperity. Similar ideas also infused the writings of an important contemporary of the American founders, the political economist Adam Smith.
Even more than Taylor, it was the adherents of an emerging “national republicanism” who agreed with Mandeville, Hume, and Smith. Although all persons are driven by their passions, not all passions are the same. Some, especially those who already have material riches, might be gripped by a simple desire for fame or honor, or by love of country. Moreover, a properly constructed constitution, produced by those few motivated by such nobler passions, might harness the baser passions of lesser politicians towards the public good. The men who met in Philadelphia for the specific purpose of drafting the Constitution might qualify as men whose primary, if not sole, passions were fame and love of country. For most, no immediate financial gain or personal political success was to be gained. Indeed, contrary to the progressive theory advanced in the early 20th century by the historian Charles Beard that economic self-interest was the driving force behind the Constitution’s adoption, it is well-established that delegates voted in favor of proposals which would, if anything, hurt their financial interests.
Such “good” passions, although they manifested a self-interest, also produced the public virtue necessary for republican government. It produced policies for the general welfare and in the interest of the public. The problem, of course, is that all politicians—and, indeed, bureaucrats of all kinds—routinely claim to be driven by a passion for public service, and that their policy proposals are in the public interest. A multitude of unelected non-governmental organizations and litigious law firms also claim the title “public interest.” Alas, to consider, for instance, who benefits from pay-outs in the typical class-action lawsuit, the reality rarely matches the professed public virtue. One never hears a politician say that a policy, no matter how nefarious and self-rewarding, is done for anything other than the noblest public purpose. Rare even is a politician as honest as the 19th-century New York Tammany Hall leader George Washington Plunkitt. He famously distinguished between “dishonest” and “honest” graft and was frank about his practice of the latter. Dishonest graft meant working solely for one’s own interests. Honest graft was to work for one’s own wealth, while simultaneously furthering the interests of one’s party and state.
The big problem, then, for the national republicans was to constrain those politicians who would in fact hold political offices for a longer time and with less-defined objectives than those who drafted the Constitution. George Washington had long and carefully cultivated the public image of the man driven solely by a passion for honor. Whatever his motives in his private actions, such as, for example, acquiring huge tracts of land, Washington in his public life appears to have been driven by his concern about the public’s perception of him as a man of honor. Forrest McDonald and numerous other historians have painted the picture of a man who might be said to have “staged” his public life. Washington was deeply affected throughout his life by Joseph Addison’s play Cato about the Roman republican statesman Marcus Porcius Cato (“the Younger”). Cato, a committed Stoic, was famous for his unrelenting honesty.
But Washington was a rare specimen of homo politicus. The national republicans’ plan for more run-of-the-mill politicians was similar to that of the agrarians, to rely on one measure of citizen virtue and another measure of constitutional structure to produce public virtue from politicians driven by private passions. Unlike the agrarians, they were convinced that a strong national government must be a part of that structure. On that point Hamilton and at least the 1787 version of Madison could agree. Hamilton and the national republicans parted ways with Madison, and with Jefferson and the more resolute agrarian republicans such as Taylor, by enthusiastically embracing the role of manufacturing and banking in promoting public virtue.
Jefferson’s ideal republic of yeoman farmers and artisans, comprising a large middle class possessed of a rough equality of means, had little room for manufacturers, and none for bankers and other jobbers dealing in phantom “wealth.” Manufacturing, when combined with commerce, the fear went, would necessarily soon lead to two anti-republican results. One was a love for material luxury; the other was a life of drudgery for the impoverished masses. The history of the ancient Roman Republic was a vivid cautionary tale. Taylor and the agrarians accepted the benefit of commerce within their preferred system of political economy, because it facilitated the export of products from the agricultural South and the importation of manufactured goods from abroad. But, in a preview of the South Carolina Nullification Crisis of the 1820s and ‘30s, this required free trade. Like most Southerners, Taylor was a committed free trader and suspicious of any national government regulation of economic matters, especially tariffs.
The agrarians’ fear of manufacturing tied into a general belief among political writers going back to antiquity that political systems evolve and, ultimately, decay. Entropy is inevitable in politics as much as physics. Agriculture may be the most desirable occupation, but, sooner or later, the limited productive land area is fully occupied, as New England was discovering. People would flock to cities where manufacturing would become their occupation. As Adam Smith described the effect on people, “the man whose whole life is spent in performing a few simple operations, of which the effects are, perhaps, always the same … generally becomes as stupid and ignorant as it is possible for a human creature to become ….” This fate stood in sharp contrast to that of the farmer, artisan, and merchant, who must possess broad knowledge and understanding of many activities. If this process was inexorable and made those human brutes unfit to practice private virtues, it also made the demise of the republic inevitable. Even Benjamin Franklin believed in the dangers from this progression, which puts his remark to his interlocutor, “A republic, madam, if you can keep it,” in yet another light. It also explains the urgency which Jefferson and other agrarian republicans felt about the westward expansion of territory and the opening of western land to agricultural settlement needed to forestall this threat to republican governance.
At the conclusion of the passage quoted above, Adam Smith extended a saving hand. After all, he was not opposed to either manufacturing or banking as sources of wealth. The evils of a poor and brutish urban working class would happen, “unless the government takes some pains to prevent it.” Smith had his views of what that might be. In any event, Hamilton, as an enthusiastic believer in Smith’s ideas, agreed that wealth was not fixed, and that even a personal profit motive can contribute to the public welfare. Investing in new processes and useful products and services is a public benefit. Thus, actions of the manufacturer and even the banker exemplify public virtue, whether or not they are driven by self-interest. He, like Adam Smith, believed that private wealth-producing activities qualified as private virtue. While others might not go that far, Hamilton successfully advocated the connection between such activity and the public virtue needed to maintain republican government.
Having established that manufacturing and banking could be “virtuous” in the public sense, there remained the need to foster them in order to ameliorate the conditions of poverty which would threaten republican government. After all, if enough wealth is created for all, “poverty” ceases to be objective and becomes relative. A rising tide floats all ships. At least from a material standpoint, owning a car and various electric and electronic devices today, living in an abode with air conditioning, and having clean water, basic sustenance and medical care, are vastly better than the experiences of past generations.
Hamilton and his supporters believed that their strong national government was the best mechanism to adopt policies which would foster the growth of wealth. Hamilton’s later program in his four reports to Congress between 1790 and 1795 on the public debt, a national bank, and manufactures, laid out in considerable detail his plans to that end. These sophisticated reports were a monument to Hamilton’s intellect and experience applied to the economic problems of the early United States. They had such potency, and were so hotly contested, that they precipitated the First American Party System of Federalists and Jeffersonian Democratic-Republicans and made Hamilton in effect the dominant figure of American politics in the 1790s.
It should be noted in conclusion that all republicans—classic puritan, agrarian, and national—opposed democracy. Even those delegates and political leaders who at one point had been most favorable towards broad public participation and involvement in politics, were shaken by Shays’ Rebellion in Massachusetts. That event in 1786 had created much tumult and political chaos and was put down by an army raised by the state. It was very much on the minds of the attendees at the Philadelphia convention. Some of the most vociferous detractors of the Constitution as insufficiently “republican” were also the harshest critics of democracy. For them, Shays’ Rebellion exposed the danger of relying on private virtue to provide the public virtue necessary for republican self-government. James Madison spoke for them all when he opined in Number 10 of The Federalist about the inadequacy of democracies to promote public virtue:
[Such] democracies have ever been spectacles of turbulence and contention; have
ever been found incompatible with personal security, or the rights of property;
and have, in general, been as short in their lives, as they have been violent in their
deaths. Theoretic politicians, who have patronised this species of government,
have erroneously supposed, that, by reducing mankind to a perfect equality in
their political rights, they would, at the same time, be perfectly equalized and
assimilated in their possessions, their opinions, and their passions.
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The United States Constitution as a Bill of Rights
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 48: The United States Constitution as a Bill of Rights – Guest Essayist: Gary Porter, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary Porter“For why declare that things shall not be done which there is no power to do?” writes Alexander Hamilton in Federalist 84. “[B]ills of rights, in the sense and to the extent in which they are contended for, are not only unnecessary in the proposed Constitution, but would even be dangerous. They would contain various exceptions to powers not granted; and, on this very account, would afford a colorable pretext to claim more than were granted.”
“The Constitution can stand alone as a ‘Bill of Rights’” was Hamilton’s clear message here. Many of America’s Founders held to that view and the Founders were no slouches, so we would expect to find some substance to the claim. If the Framers indeed designed a United States Constitution of “limited and enumerated” powers, as Madison claimed in remarks during the Virginia Ratifying Convention, where was the fear of government infringement on individual freedoms to be found?
Indeed, in several places in the Constitution we find particular individual rights given explicit protection. For instance, in Article 1, Section 9 we find Congress specifically denied power to create bills of attainder, ex post facto laws and suspend the “Privilege of the Writ of Habeas Corpus.” Similar restrictions against the states are found in the next section of Article 1. The states are further required to protect your right of contract in the same section. In Article 3, we find the fundamental right of trial by jury preserved for “all Crimes, except in Cases of Impeachment.” “All Privileges and Immunities of Citizens in the several States” are guaranteed/protected in Article IV. But what do these consist of? The Constitution gives us no clue and, while the Supreme Court had an opportunity to provide an answer in the past[i] they demurred, so we are left to ponder the extent of this protection. As regards congressmen and congresswomen, a limited form of freedom of speech, at least while engaged on the floor of Congress, is found in Article 1, Section 6, where a companion protection from arrest is also located.
But that is about it as far as specific individual rights protections are concerned in the seven articles which make up the original Constitution. Where is the explicit protection of speech, or religion, of conscience, of the right to keep and bear arms, etc.? Hamilton’s answer of course would be: “where is the government given power in the Constitution to intrude upon any of those rights? The weight of Hamilton’s and Madison’s argument must rest then on the Constitution actually being, and, more importantly, remaining, a limited powers document. It is quite clear from the journals of early Congresses that congressmen routinely considered the Constitution to limit the powers of government.
The 1st Congress refused to approve a loan to a glass manufacturer in Georgetown after some members charged it was unconstitutional. A member in the 3rd Congress (1794) proposed $15,000 for relief of French refugees who fled from insurrection in San Domingo to Baltimore and Philadelphia. Third-term Congressman James Madison rose to object, saying, “I cannot undertake to lay my finger on that article of the Constitution which granted a right to Congress of expending, on objects of benevolence, the money of their constituents.” The 4th Congress (1796) turned down a request for relief to the citizens of Savannah, GA, after a fire burned down nearly a third of the city. On his last day as President in 1817, James Madison famously vetoed what today we would call an Infrastructure Bill,[ii] stating: “it does not appear that the power proposed to be exercised by the bill is among the enumerated powers [of the Constitution].
Has Madison’s view persisted? The following should be shielded from sensitive eyes.
Beginning principally in the Progressive Era and accelerating in the New Deal Era, the effort to expand the powers of the federal government has enjoyed great success. In 2010, then Congressman Peter Stark of California famously declared that “Yes, the federal government can do most anything in this country.” The picture has not improved much in the last twelve years.
Thanks to decisions in 1936[iii] and 1937,[iv] the Supreme Court gave Congress the power to spend money on anything it could justify in its own “mind” as supporting the general welfare of the United States. Madison warned in 1792 that this sort of interpretation of the General Welfare Clause would turn the “limited powers” Constitution into “an indefinite one subject [only] to particular exceptions.”[v] The 1937 Supreme Court had a different idea and today, Madison’s observation that “Charity is no part of the legislative duty of the government”[vi] is considered a quaint relic of a bygone era.
In 1942,[vii] the federal government was given the power to regulate nearly all aspects of business in the U.S. since only a miniscule connection to “interstate commerce” was necessary. In 1968,[viii] the Court cleared the way for Congress to delegate its exclusive law-making power[ix] to executive branch agencies. This has resulted in a veritable flood of “regulations with the force of law” which impact our individual lives in myriad ways and the compliance of which are estimated to add $2 Trillion dollars to the cost of doing business in this country, a cost passed on to you and me in the form of increased prices for goods and services.
The Anti-federalists warned of the immense power being given this new central government,[x] yet I doubt they foresaw the magnitude of the federal power-grab we continue to experience today. Even the addition of a discrete Bill of Rights in 1791, while affording important individual rights protections, has not been enough (what does “shall not be infringed” mean?) Hamilton’s hope that the Constitution could stand alone as a Bill of Rights was hopelessly utopic. A Bill of Rights has proved absolutely necessary, but not alone sufficient to curtail the continuing federal power grab.
In conclusion, for the U.S. Constitution to have stood alone as a protector of individual, God-given, unalienable rights, as Hamilton wished, was in hindsight incredibly naive. One important feature of the original document needed to survive: limited powers, and it didn’t. Various groups with a decidedly different view of the purpose of government, assisted by a Supreme Court which from time to time shared their view, have successfully changed the fundamental nature of our wonderful Constitution from one of limited and enumerated powers to one of near plenary power. Taking advantage of the ambiguity of words and the concept of a “Living Constitution,” these forces have succeeded in creating a government which today intrudes into nearly every aspect of our private and corporate lives. The “demise” of the Tenth Amendment has been widely recognized by both Left and Right.[xi]
What is to be done? Must we simply acknowledge this sea change in the Founders intent to “secure the blessings of liberty to ourselves and our posterity” and learn to live with Leviathan? That is certainly one option – one allowing us to live relatively peaceful if increasingly controlled lives. The other response requires action, commitment and purpose. We must rouse ourselves and our neighbors, educate society to the problem we face and the inevitable endstate should we remain on this path, and proceed methodically to repair the damage to this inspired document. The Supreme Court can be an ally in this project, if an originalist majority can be kept in place long enough to reverse key decisions. But that could take decades, perhaps scores of years. The more logical approach is one the document itself gives us: amendment.
Congress will never take action to reduce the immense power they have been given by the aforementioned SCOTUS decisions; that much, I hope, we can agree upon. But a carefully worded amendment defining “commerce” and placing limits on the interpretation of the Interstate Commerce Clause could. No power-reducing amendments will ever emanate from the Congress and be sent to the states for ratification. So, we face precisely the situation Colonel George Mason of Virginia warned of on September 15, 1787, as the delegates considered the, at that time, single method of amending the Constitution. “No amendments of the proper kind would ever be obtained by the people, if the Government should become oppressive (Madison writes in his Notes), as he (Colonel Mason) verily believed would be the case.” Adopted “nem con” (i.e., unanimously) was a second method of proposing amendments: the states could meet in convention to consider and propose amendments.
It seems to this writer that the solution to the problem of Leviathan is at hand, given us expressly for the situation we now face: congressional intransigence. Will we grasp it or allow individual freedoms to inexorably slip away?
[i] Notably in what became known as the Slaughterhouse Cases.
[ii] https://millercenter.org/the-presidency/presidential-speeches/march-3-1817-veto-message-internal-improvements-bill.
[iii] United States v. Butler, 297 U.S. 1 (1936).
[iv] Helvering v. Davis, 301 U.S. 619 (1937).
[v] “If Congress can do whatever in their discretion can be done by money, and will promote the general welfare, the Government is no longer a limited one possessing enumerated powers, but an indefinite one subject to particular exceptions. It is to be remarked that the phrase out of which this doctrine is elaborated, is copied from the old articles of Confederation, where it was always understood as nothing more than a general caption to the specified powers, and it is a fact that it was preferred in the new instrument for that very reason as less liable than any other to misconstruction.”
[vi] James Madison, Speech in the House of Representatives, January 10, 1794.
[vii] Wickard v. Filburn, 317 U.S. 111 (1942).
[viii] Mistretta v. United States, 488 U.S. 361 (1989.
[ix] “All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
[x] https://mises.org/library/antifederalists-were-right
[xi] https://mises.org/power-market/who-killed-10th-amendment.
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Indispensable Contents of a Bill of Rights for the United States Constitution: Federalist and Anti-federalist Perspectives
Eric Sands, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 47: Indispensable Contents of a Bill of Rights for the United States Constitution: Federalist and Anti-federalist Perspectives – Guest Essayist: Eric Sands, Eric Sands, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThe Constitutional Convention has been referred to as the “Miracle in Philadelphia” and there is a great deal of justice to that label. The delegates to the convention faced long odds in reaching compromise on a new form of government. But in many respects, writing the United States Constitution was only half the battle; the delegates then had to get it ratified. This proved to be a difficult task and required the assistance of some of the leading minds in the country to convince the American people to accept the new document.
These proponents of ratification were known as Federalists and included men such as Alexander Hamilton, James Madison, John Jay (collectively known as “Publius”), James Wilson, George Washington, Gouverneur Morris, John Marshall, and Benjamin Franklin. These men were nationalist in their orientation and believed that a stronger national government was a necessary corrective for the defects in the Articles of Confederation. Opposing these Federalists were the Anti-federalists who argued against ratification, or at least counseled serious modifications to the Constitution’s design. Among the most prominent Anti-federalist writers were Patrick Henry, Melancton Smith, and authors writing under pseudonyms such as Cato, Brutus, Centinel, and Federal Farmer. These men advocated for a confederal form of government where most of the power would be held in the hands of the states.
The Anti-federalist arguments generally fell into two categories. The first was pursuing structural changes in the Constitution itself to limit the power of the national government. During the public debates, Anti-federalists raised numerous objections to the Constitution and pointed out that the power being ceded to the national government was a danger, not just to the states, but to the people. The Anti-federalists, for example, argued that too much power was being given to the president and that he could become a monarch. This was especially true given his infinite re-eligibility. The Anti-federalists complained that the Constitution blended powers too much and needed to adhere to a much stricter principle of separation of powers. They feared that the Supreme Court would become an all-power government tribunal and proposed presidential commissions that could overturn bad judicial decisions. Congress’ power was seen as too extensive and needed to be scaled back. Limits needed to be put in place governing Congress’ control over the state militias and federal elections, and there was an overarching fear about how much power Congress might subsume under the necessary and proper clause. Finally, the Anti-federalists harbored deep suspicions that a republican form of government could work over a territory and with a population as large as the United States. Conventional wisdom of the day held that republics could only be successful in a small territory with a small and relatively homogenous population. A republic on the scale of the United States had no historical precedent and the Anti-federalists believed it could not work.
As enlightened as some of the Anti-federalist objections to the Constitution were, structural changes were not in the cards. All the Anti-federalist amendments introduced at the ratifying conventions were defeated. A large part of this defeat was owing to the efforts of the Federalists to get their defenses of the Constitution into print and the larger number of newspapers that supported ratification. However, the Anti-federalists had a second category of arguments that proved far more successful. These arguments revolved around the lack of a bill of rights in the Constitution. The lack of a bill of rights seemed to them to be particularly egregious given how much power was being given to the national government. Thus, in numerous essays, the Anti-federalists complained about a need for specific protections like freedom of speech, press, religion, assembly, petition, and possession of arms. Most of these rights were guaranteed to the people at the state level, so it made little sense that the people’s rights should be less secure at the national level.
Federalists initially countered these arguments in a couple of ways. In Federalist 84, for example, Hamilton argued that the Constitution should be allowed a trial period before alterations were made. There may be several things the American people want to change five or ten years down the road, so make the changes then when a judgment can be made about whether they are necessary. Second, the structure and design of the Constitution already protected rights through separation of powers, checks and balances, enumerated powers, and republicanism. Any attempt to infringe on personal rights would never be able to survive this gauntlet of obstructions. Finally, a bill of rights could endanger rights because it would only include certain specified rights, leaving others unprotected. It would also imply that rights come from government and that it alone chooses which rights to recognize.
Despite this defense of not including a bill of rights in the Constitution, the American people remained unpersuaded, and the Constitution stood a real chance of not being ratified because of this defect. Eventually, however, the Federalists gave in, and several of their most prominent members made promises that a bill of rights would be on the agenda of the First Congress. With this promise in place, ratification moved forward, and eleven states initially joined the Union (Rhode Island and North Carolina did not ratify until later).
The first national elections were a disaster for the Anti-federalists with them winning only a few seats in the House and the Senate. The landslide victory for the Federalists had cooled Federalist opinion about the need for amendments. Some speculated that the promise made to the people could be safely ignored, while others argued that some vague, superficial amendments would likely suffice. James Madison, however, stood up for a bill of rights. Having made a personal campaign pledge to produce a bill of rights to his constituents, Madison made repeated efforts to get the bill on the legislative agenda. When that did not work, he presented a formal proposal of amendments he thought should be introduced into the Constitution. Still, Federalists were not enthusiastic about his proposal and likely would have never allowed the bill to move forward had Madison’s not received Washington’s endorsement, which Washington articulated in his inaugural address. Once the federal revenue system was completed, the Federalists finally got around to Madison’s amendments.
Anti-federalists, though few and far between, used the opportunity to start making their own proposed amendments to change the structure of the Constitution. But they were voted down every time, with antagonism between the two sides becoming so heated that congressmen challenged each other to duels. In the end, Madison’s patience and his willingness to compromise helped move the amendments along. Congress did not adopt all the amendments, and the language of others was altered, but that was the price Madison had to pay to see the amendments submitted to the states. On December 15, 1791, enough states ratified the Bill of Rights to formally make the ten amendments part of the Constitution.
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Purpose for a Bill of Rights in the United States Constitution
90 in 90 2022, Tom Hand, 6. Guest Constitutional Scholar Essayists, Blog Essay 46: Purpose for a Bill of Rights in the United States Constitution – Guest Essayist: Tom Hand, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Tom Hand, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThe first ten amendments to the United States Constitution, better known as the Bill of Rights, are what allow us to enjoy many of the day-to-day blessings of our great country. Freedoms easily taken for granted are enshrined in these revisions to the original document. While the Constitution shaped our government, the Bill of Rights shaped our lives.
These amendments include both individual freedoms such as the right to keep and bear arms, free speech, freedom of the press, and freedom to worship as we please, as well as restrictions on the power of the federal government.
You might wonder why these basic freedoms had to be added to the Constitution after it was created rather than being front and center in the debates at the Constitutional Convention. The reason can be found in considering the mission of the convention.
Specifically, when the Constitutional Convention met in Philadelphia in the summer of 1787, the delegates’ primary goal was to fix the weaknesses in the Articles of Confederation and, thereby, form a system of government that would allow the country to flourish.
Consequently, most of the discussion at the convention focused on the form of government and how it would operate, not on the individual rights of the people. Although the representatives met from May 14 to September 17, no motion to adopt a Bill of Rights for the citizens of the country was introduced until September 12 when George Mason of Virginia did so.
Mason’s suggestion was quickly dismissed and, looking back, it seems surprising that something as crucial as a bill of rights was not subject to lengthy debate. However, we must keep in mind each state already had their own constitution, many of which contained a bill of rights.
As James Madison noted in his essay Federalist 46, the new federal constitution did not eliminate those rights granted by the states. Since personal rights already existed at the state level, Madison argued there was no need for the federal government to guarantee them as well.
From a more practical standpoint, the delegates needed to get home. They were not full-time politicians who made their living on the government payroll. They were mostly doctors, lawyers, businessmen, and farmers. Time away from home cost them money and, quite naturally, after being in hot, steamy Philadelphia for four months, they did not want to extend the convention for several more weeks to discuss such a contentious topic.
Soon after the proposed Constitution was circulated to the state legislatures for approval in late 1787, it came under criticism for several perceived faults, but primarily for its lack of a bill of rights. The group opposing the new Constitution became known as “Anti-federalists” and were led by Elbridge Gerry of Massachusetts and George Mason.
Gerry published a widely circulated letter, dubbed “Hon. Mr. Gerry’s Objections,” in which he stated his reasons for not supporting the new Constitution. As he saw it, “the liberties of America were not secured by the system” and it was flawed “without a bill of rights.”
Alexander Hamilton responded in Federalist 84 that “the constitution is itself in every rationale sense, and to every useful purpose, a bill of rights.” He added that by ratifying the Constitution “the people surrender nothing, and as they retain everything, they have no need of particular reservations.”
There was also concern that, by listing only certain rights, it could be implied that those were the only ones guaranteed by the new Constitution and any others not mentioned were not. In other words, explicitly stating any rights might actually reduce our freedom.
Although the proposed document was quickly ratified by five states (Delaware, Pennsylvania, New Jersey, Georgia, and Connecticut), it bogged down in other state legislatures primarily due to the absence of a bill of rights. In Massachusetts, the impasse was broken when Anti-federalists, led by John Hancock and Samuel Adams, agreed to ratify the proposed Constitution on the condition that a bill of rights would soon follow.
The Federalist minorities in the Maryland and Virginia assemblies facing similar opposition, also agreed to establish a bill of rights rather than risk delaying the ratification of the Constitution. This spirit of compromise kept the process moving.
On June 21, 1788, New Hampshire became the ninth state to approve the proposed Constitution. As a result, Congress formally ratified it on September 13, 1788, with an enactment date of March 4, 1789. One hurdle had been cleared.
The challenge now was to craft a bill of rights that would be acceptable to the thirteen states. James Madison of Virginia, an early opponent of a bill of rights and a member of the House of Representatives, eventually changed his position on the matter and led the effort to develop one that would satisfy the Anti-federalists.
Madison’s initial effort recommended nine changes to the body of the new Constitution rather than additional articles. However, the Federalists saw this attempt to modify the original text they had so recently ratified as a mistake. They argued these changes might undermine the credibility of the new document.
Instead, the House of Representatives, swayed by the arguments of Roger Sherman, agreed to place all amendments at the end of the Constitution. On September 25, 1788, after much debate, the House and Senate jointly agreed to twelve proposed Articles as additions to the document and forwarded them to the states for their approval.
On December 15, 1791, Articles Three through Twelve were ratified by Congress and became the first ten Amendments to the Constitution, our Bill of Rights. Interestingly, Article Two dealing with Congressional pay raises was not approved until 1992 as the 27th Amendment and Article One dealing with the number of seats in the House has never been approved.
So why should the Bill of Rights matter to us today?
Quite simply, life as we know it in the United States of America would not be the same without the rights stated in our first ten amendments. Try to imagine a country without religious freedom or the right to say what we want. Or a place where the government could search your home without cause or deny you due process of law.
The Bill of Rights matter to all of us every day we live in this great country of ours. We must know and understand our rights as Americans, or we can never hope to preserve them. It is truly our shared responsibility.
If you want to learn more about your Bill of Rights, I suggest reading Akhil Reed Amar’s book The Bill of Rights. Published in 1998, this book is an excellent account of our Bill of Rights, including the history behind their creation, how the interpretation of them has evolved, and how they are linked to one another.
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Toward a More Perfect Union: Correcting the Articles of Confederation Through the United States Constitution
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 45: Toward a More Perfect Union: Correcting the Articles of Confederation Through the United States Constitution – Guest Essayist: Gary Porter, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary R. PorterShay’s Rebellion was a “wake-up” call for all Americans. The armed closure of a duly constituted court was a drastic step. But these were drastic times. The war with Britain, though favorably concluded for the Americans, had left the economies of the states in shambles. The Confederation Congress found itself powerless to intervene. By the summer of 1786, farmers were unable to find a market for their crops or meet their tax obligations; without hard cash they were unable to make their mortgages or loan payments. The courts, with little recourse but to uphold the law, were foreclosing on farmers who only a few short years before had been fighting for their country’s independence. On August 31, 1786, ex-Revolutionary War Captain Daniel Shays, now himself a bankrupt farmer, lead an armed mob to the Northampton, Massachusetts court and forced it to close. But Massachusetts was not alone: Pennsylvania’s James Wilson observed that “The flames of internal insurrection were ready to burst out in every quarter.” Mutinies of soldiers in New York, New Jersey and Pennsylvania fed the anxiety. Political cartoons began to appear in American newspapers mocking Congress. Leading men began calling for amendments to, or even replacement of, the Articles of Confederation.
In April 1786, Rufus King wrote to Elbridge Gerry: “We are without money or the prospect of it in the Federal Treasury; and the States, many of them, care so little about the Union, that they take no measures to keep a representation in Congress.”[i]
Three years before, Henry Knox had complained to Gouverneur Morris: “As the present Constitution is so defective, why do not you great men call the people together and tell them so; that is, to have a convention of the States to form a better Constitution.”[ii]
Finally, the pleas for change were heard, there would be a “Grand Convention” to “fix things” once and for all. Alexander Hamilton and James Madison were elated. Their quiet work behind the scenes had paid off.
In Hamilton’s view “The fundamental defect is a want [lack] of power in Congress.”[iii] He had tried numerous times to have the Articles amended, to no avail. George Washington complained of “a half-starv’d, limping Government.”[iv]
Madison was determined not to waste the opportunity the convention afforded. First, he would place the Articles under his scholar’s microscope and identify each of its defects. Madison was in a unique position to undertake this analysis: he had represented Virginia from 1780-1783 in the Confederation Congress and had seen from that vantage its inherent weakness. Following this, he had served the next three years in the Virginia Assembly, seeing the problems caused by the Articles from that perspective. Returning once again to a seat in the Confederation Congress in the Spring of 1787, Madison sat down at his desk before setting out for Philadelphia and wrote “Vices of the Political System of the United States.” These would become the “cautions” that a new government must avoid. Hopefully it would become a government actually empowered to govern.
All but the last of the twelve “bullet points” Madison set down in “Vices” were accompanied by elaborating commentary. For instance: “Failure of the States to comply with the Constitutional requisitions,” the first complaint, was explained as an “evil” which “has been so fully experienced both during the war and since the peace, [which] results so naturally from the number and independent authority of the States and has been so uniformly exemplified in every similar Confederacy, that it may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present System.”
While Madison was careful to identify the “effects” of the deficiencies of the Articles, he did not focus on its numerous structural defects:
All of these defects were corrected in the new Constitution.
The standard meme today is that the Articles were discarded in their entirety and a “brand-new” document substituted. But while the structure of government adopted at the Grand Convention was indeed new, not every feature of the Articles was abandoned; the following clauses and provisions were retained, some nearly verbatim:
At the Virginia Ratification Convention on June 5, 1788, Edmund Pendleton would sum up the Articles thusly: “Our general government was totally inadequate to the purpose of its institution; our commerce decayed; our finances deranged; public and private credit destroyed: these and many other national evils rendered necessary the meeting of that Convention.”
The genius of fifty-five “demigods” would find solutions to the various defects of the Articles of Confederation, would create the “more perfect union” the men sought and that America deserved, yet all this genius depended on one final institution: a virtuous people. As John Adams reminds us: “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.”[v] If this constitutional republic is to survive, if the republic is to be “kept,” the result is in the hands of “We the People.”
[i] Rufus King to Elbridge Gerry, April 30, 1786
[ii] Henry Knox to Gouverneur Morris, Feb 21, 1783.
[iii] Alexander Hamilton to James Duane, 3 Sept. 1780.
[iv] George Washington to Benjamin Harrison, 18 Jan. 1784.
[v] To the Officers of the First Brigade of the Third Division of the Militia of Massachusetts, October 11, 1798.
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From the Articles of Confederation and Perpetual Union to a United States Constitution
90 in 90 2022, Tom Hand, 6. Guest Constitutional Scholar Essayists, Blog Essay 43: From the Articles of Confederation and Perpetual Union to a United States Constitution – Guest Essayist: Tom Hand, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Tom Hand, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThe Articles of Confederation and Perpetual Union was our nation’s first constitution and essentially served as the basis for our government from 1777 to 1789. It was created by the thirteen original states to help them unify their war efforts against England and was the precursor to our present Constitution.
In June 1776, soon after the Second Continental Congress appointed the Committee of Five to draft the Declaration of Independence, Congress also established a committee to craft a document by which this new country would be governed. Comprised of one delegate from each colony and chaired by John Dickinson of Pennsylvania, these thirteen men presented their initial draft to Congress on July 12, 1776.
They named it the Articles of Confederation, suggesting a fairly loose coalition rather than one united entity. Although the states agreed to form a national government, they were not willing to cede any of their individual rights or powers to it.
After much debate and five different versions, the Articles were finally approved by Congress on November 15, 1777, and immediately sent to the various states for their ratification. Although official approval of the document required all thirteen states to ratify it and the thirteenth state (Maryland) did not do so until February 2, 1781, the Articles effectively guided Congress’ action from 1777 onward.
The Articles stressed the rights of the individual states more than the power of the central government. As Article II states, “Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated.”
Additionally, the states viewed this association as a group of co-equals and there was no consideration given for the size, wealth, or population of the various colonies. As articulated in Article V, “In determining questions in the United States in Congress Assembled, each state shall have one vote.”
Article IX entrusted several responsibilities to the Confederation Congress such as dealing with Indian nations and foreign affairs to include making treaties, declaring war, and making peace. However, the Article also required “nine states assent” to virtually anything Congress wanted to do. Given the sessions were lightly attended by the delegates, quorums were often difficult to attain which made passing any new legislation even more challenging.
Interestingly, Article XI expressly allowed for the addition of Canada to our confederation if that colony so chose. That fact indicates how precarious was England’s hold on our northern neighbor in the minds of Americans in the 1770s. Finally, as Article XIII states “the Union shall be perpetual” which meant that joining the compact was permanent and there was no recourse for leaving the Union.
The Articles of Confederation as approved created an amazingly weak central government. One might ask why the states would take the time to form a national government at all if the one they designed was powerless and ineffective. It is important to remember state sovereignty was paramount to virtually all political leaders in early America.
As the move towards independence gained traction in 1776, states codified freedoms in their own state constitutions that had been denied to them under King George and Parliament. With each state already guaranteeing liberties to all citizens, there was no need or desire to create a powerful entity at the federal level to ensure them.
This extreme focus on state’s rights is understandable when one considers how the original colonies had been established. Rather than the eastern seaboard being populated by the English all at once, the various colonies had been settled separately and independent of the others. Naturally, each colony jealously guarded its autonomy.
The inherent weakness of the federal government, and the danger that posed, became clear as the American Revolution got underway. Although its provisions authorized the central government to regulate and establish an Army, it lacked the power to enforce its decrees. While Congress could request funding and troops from the states, all money and men would only be forthcoming if the states agreed to the requests. Not surprisingly, most requests were ignored.
This lack of funding and men almost proved the undoing of the Continental Army which, of course, would have meant the end of our effort to win independence. As General George Washington wrote to George Clinton from Valley Forge in February 1778, “For some days past, there has been little less than a famine in camp.” He went on to write, “When the fore mentioned supplies are exhausted, what a terrible crisis must ensue.”
Unfortunately, funding for the army only got worse after we secured our independence. With the threat from England largely ended, the national army shrank to a skeletal force that attempted without much success to protect the western borders from Indian attack. Additionally, because of this military impotence, the United States could not compel England to abandon its forts in the Northwest Territory as called for in the Treaty of Paris.
The Articles also expressly denied Congress taxation authority. Consequently, the central government was constantly short of cash and unable to pay its bills. Congress printed more money, but this only served to devalue the currency. To make matters worse and national finances more confusing, the individual states had the right to print their own currency as well.
Another flaw was the lack of an executive branch. Although the men who presided over the Continental Congress were called “President,” they had no power, and many served in that position for less than a year. Most delegates had seen too much of King George and monarchy to be willing to entrust significant authority in one central figure.
These issues aside, the Articles of Confederation deserves some credit. For one thing, it was our first constitution, and with it we survived the American Revolution and six years beyond.
The Articles also granted the Confederation Congress the authority to establish an efficient system for expanding the new nation. Its provisions for new territories and how to settle them as seen with the Northwest Ordinance of 1787 proved to be a boon in the decades that followed.
So why should the Articles of Confederation matter to us today? Perhaps the greatest blessing of the Articles was its flaws. Our nation’s leaders were able to see and learn early on what we needed in a central government for our country to succeed.
While we feared a powerful Federal government, we realized one that was powerless would ensure our demise. The recognition that we needed to balance these two concerns led to the changes our Founding Fathers incorporated into our Constitution.
If you want to learn more about the Articles of Confederation, I suggest reading “We Have Not a Government: The Articles of Confederation and the Road to the Constitution” written by George Van Cleve. Published in 2017, it is an excellent account of the troubles resulting from the weakness of the Articles and how those troubles led to the creation of our Constitution.
Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.
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Laboring Over Ingredients for Good Government: America’s Founding Generation on Drafting Early State Constitutions
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Gary Porter Essay 42: Laboring Over Ingredients for Good Government: America’s Founding Generation on Drafting Early State Constitutions – Guest Essayist: Gary Porter, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Gary PorterBefore I begin this discussion, I should like to highlight two books which cover this topic quite well, in far more detail than I can include here: The First American Constitutions, by Willi Paul Adams, first published in 1973 in Germany, later, in 2001 in the U.S., and The Origins of American Constitutionalism, published in 1988 by Donald S. Lutz. Both are well-written, well-documented and well-worth your time.
We tend to view the American War for Independence in simplistic terms: parliament overreached; the colonies balked, declared their independence, fought a war to secure that independence, and went on to establish a unique written Constitution “of the people, by the people and for the people.” But as any historian knows, the story is more complicated. While the later part of the 1700s, at least in America, was indeed dominated by the War for Independence, “[t]he last three decades of the eighteenth century were a time of extraordinary political experimentation and innovation,” [i] writes Donald Lutz, and the American Revolutionary War “just happened” to occur during that extraordinary time.
The U.S. Constitution has at various times and by various writers been called the product of the Enlightenment, Classical Greek philosophy, Protest theology, the Hebrew Republic, English common law and English Whig political theory, and some of its roots can easily be traced to these predecessors; but many overlook its connections to the first state constitutions. “The early state constitutions contributed significantly to the development of [the] constitutional principles [found in the U.S. Constitution].”[ii] “Anyone who will lay the Federal Constitution side by side with the State Constitution of Massachusetts (adopted in 1780) and with the State Constitution of New York (adopted in 1777) will be startled by the extent to which the members of the Federal Convention not only followed the principles, but used the exact phraseology of those State documents.”[iii]
By 1787, when fifty-five men met in Philadelphia to “render the federal Constitution adequate to the exigencies of the Government and the preservation of the Union,”[iv] all but two of the thirteen states had already set in place a new state constitution.[v] Of those fifty-five men, almost half (26) had served in their state legislatures, including participating in the drafting of their state’s new plan of government.
References to numerous state constitutional provisions were made during the “Grand Convention.” One of the last being on September 12th, just five days before the Constitution was completed and signed. Virginia delegate, George Mason, rose to point out that the absence of a Bill of Rights in the draft they were then considering was a matter of great concern. “It would give great quiet to the people (to have a Bill of Rights); and with the aid of the State declarations, a bill might be prepared in a few hours.” Colonel Mason, you may recall, had been the chief architect of the Virginia Declaration of Rights of 1776; thus, he was eminently qualified and experienced to draft yet another declaration. But Mr. Roger Sherman of Connecticut then rose to point out that “The State Declarations of Rights are not repealed by this Constitution; and being in force are sufficient.” A motion was made to establish a committee to draft a bill of rights, but the motion failed 0-9, and the delegates went on to put the final touches on the document they had labored over for four long months.
But let’s step back a bit in time and review what prompted this “extraordinary political experimentation and innovation.”
Rising tensions between Great Britain and the American colonies had led to the suspension of state assemblies in Massachusetts, New York, Virginia. Other Royal Governors simply fled their posts. Leaving a society without government and/or leadership invites anarchy. Thomas Jefferson complained of this in the Declaration of Independence:
He (i.e., the King) has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people.
He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise; the State remaining in the mean time exposed to all the dangers of invasion from without, and convulsions within.
Without their state assemblies in operation and to mitigate “the dangers of invasion from without, and convulsions within,” Committees of Correspondence, Committees of Inspection and Committees of Safety became shadow state governments. Eventually, provisional assemblies were formed and these sought advice from the Continental Congress, which began meeting in September 1774.
The State of New Hampshire figures prominently in America’s constitutional history: their ratification of our U.S. Constitution on June 21, 1788, was the ninth and final ratification necessary to put the document into effect. The subsequent ratifications, by Virginia, New York, North Carolina and Rhode Island, only ensured those states would be participants in the new union rather than bystanders. But few Americans today know that New Hampshire was also the very first colony to enact a new constitution, on January 5th, 1776, a full seven months before the united colonies declared their independence in Philadelphia. New Hampshire had asked the Congress for permission to do so in the Fall of 1775, even suggesting that Congress draft a standard state constitution that each state would then adopt. Congress debated this but decided that there were so many differences in the state governments that had evolved over a hundred or more years that a “one size fits all” approach would simply not work. Congress finally gave New Hampshire and South Carolina the “go-ahead” on November 3rd, 1775.
South Carolina followed New Hampshire’s lead with a new provisional constitution of their own on March 26, 1776. On May 4th., Rhode Island unilaterally declared its independence from Great Britain without finding it necessary to establish a new plan of government; their original charter, stripped of its monarchical references, would serve adequately.
Two days later, Virginia began the fifth in a series of conventions. Meeting in Williamsburg, the delegates approved a Declaration of Rights on June 12th and their new constitution on June 29th.
Noting the actions of New Hampshire, South Carolina, and Rhode Island, and perhaps trying to “get ahead of the curve,” the Continental Congress on May 10th approved a circular to the thirteen colonies encouraging any of the colonies who had not yet done so to form new provisional governments. After adding a preamble on 15 May, the circular was sent. [vi] On July 2, 1776, the same day Richard Henry Lee’s resolution for independence was approved in the Congress, New Jersey ratified its new constitution.
All but one of the remaining states approved new constitutions within a year: Delaware (September 11, 1776), Pennsylvania (September 28, 1776), Maryland (November 8, 1776), North Carolina (December 14, 1776), Georgia (February 4, 1777), and New York (April 20, 1777). Connecticut, like Rhode Island, decided its existing charter provided an adequate government. Other than Rhode Island and Connecticut, Massachusetts became the last state to adopt a new constitution, in 1780.[vii] In the years that followed, several states updated or replaced their provisional constitutions.
As each colony-turned-state began drafting their new constitution they drew upon, in Virginia’s case for instance, the experience of more than 100 years of self-governance. Each colony had an elected assembly, either unicameral or bicameral, a court system, and a Royal Governor appointed by the King but usually also advised by a Governor’s Council. By 1773, however, the aforementioned committees were governing towns and counties, and soon nearly all the colonies had established provincial congresses acting outside royal authority.[viii]
Despite their practical experience in governing, the states found constitution-making from scratch a relatively new, untested process. What features of their colonial government should they retain, which should be modified or abandoned altogether? Hanging over all this constitution-making were the Articles of Confederation. For nearly four years (November 1777 – March 1791) the Articles lacked the unanimous consent they needed to be in official operation, yet there was a war afoot; no time to wait for Maryland to come on board; Congress had no choice but to act as though the Articles were ratified. How well would these new state governments work with the Confederation Congress? Not well at all as it turned out. But the blame should be placed on the Articles, not the states.
The Continental Congress continued to function as a rudimentary, unicameral central government under the Articles of Confederation, yet in 1776-77, as the states drafted their new plans of government, the confederation’s more glaring deficiencies were yet to be revealed. What did the states come up with?
Many states kept the other major features of the governmental structure that served them for so many years. One example from Delaware: “The sheriffs and coroners of the respective counties shall be chosen annually, as heretofore.”
So, what can rightfully be called innovations in the state constitutions? I’ve encountered few that could be called truly radical, but Delaware’s Constitution provides some examples:
What of the various state bills or declarations of rights? How did they compare with what eventually became the U.S. Constitution’s Bill of Rights?
Beginning with Massachusetts, the Anti-federalists began insisting that their vote for ratification would only materialize if there were a “gentleman’s agreement” that both amendments and articles for a future bill of rights would be accepted and submitted with the ratification instrument. When he arrived at the first Congress under the new U.S. Constitution, James Madison set to work reviewing these submissions from the states and incorporating those with the greatest appeal. It should come as no surprise to find parallels between the state Declarations and what became the U.S. Bill of Rights. But there were exceptions – suggestions that were either rejected by Madison or rejected by the Congress after Madison included them in his draft to the Congress. Notably, several verbatim quotes from Virginia’s Declaration of Rights were rejected by the Congress after appearing in the draft.
In summary, as Willi Paul Adams concludes: “The most significant accomplishment of the American Revolution, apart from the military achievement of independence, was the successful establishment of republican, federal, and constitutional government in a territory so extensive by European standards that conventional wisdom considered only monarchical government suitable for such an empire.”[xii]
Donald Lutz takes a different view: “[t]he (U.S.) Constitution … successfully created a new constitutional system appropriate to new political circumstances, it conserved what was best and central in the earlier American constitutional tradition, and it bult upon and in many important respects derived from state constitutions.”[xiii](emphasis added)
While the American states were intended to be experiments in government, and they have in many respects played that role over our 230+ years, there was still remarkable similarity in the thinking of the drafters of the early state constitutions as they considered what were the ingredients to “good government.” The fact that Massachusetts operates today from their 1780 Constitution, albeit with 120 amendments, remains a testament to the wisdom of America’s founding generation.
[i] Donald S. Lutz, The Origins of American Constitutionalism, Louisiana State University Press, 1988. p. 97.
[ii] Donald S. Lutz, Ibid. p`. 99.
[iii] Charles Warren, Congress, the Constitution, and the Supreme Court. 1925
[iv] Resolution of the Confederation Congress, February 21, 1787.
[v] Rhode Island decided to retain the structure of government described in their Royal Charter although the linkage to the British government had of course been severed. Rhode Island operated from this modified charter until 1842.
[vi] “Resolved, That it be recommended to the respective assemblies and conventions of the United Colonies, where no government sufficient to the exigencies of their affairs have been hitherto established, to adopt such government as shall, in the opinion of the representatives of the people, best conduce to the happiness and safety of their constituents in particular, and America in general.”
[vii] Giving Massachusetts the distinction of having the longest continuously-operating constitution in the world today.
[viii] https://en.wikipedia.org/wiki/Colonial_government_in_the_Thirteen_Colonies
[ix] Virginia Constitution, 1776, Article 1, Declaration of Rights, Sec. 5.
[x] Charles Warren, Congress, the Constitution, and the Supreme Court. 1925, p. 24
[xi] Donald S. Lutz, Ibid. p. 106
[xii] Willi Paul Adams, The first American Constitutions, 2001, p. 5-6.
[xiii] Donald S. Lutz, Ibid. p. 109
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Successful Government and Forming State Constitutions on All Political Power Being Vested in and Derived From the People Only
Adam Carrington, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 41: Successful Government and Forming State Constitutions on All Political Power Being Vested in and Derived From the People Only – Guest Essayist: Adam Carrington, Adam Carrington, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesWe don’t always get it right the first time. Sometimes, experimentation then leads to true success. Those statements prove true for many situations, professional and private. The Founders experienced both with their first forays into constitution-making in the 1770s and the 1780s. Those efforts included the Articles of Confederation, our first national constitution. Our current Constitution replaced it after a short, tumultuous time.
Here, though, we will focus on the efforts made at the state level. The former colonies needed their own governing documents to set the conditions for rule. These first efforts saw some success and some need for serious improvement.
First, these constitutions got the source of rule correct. The constitution for North Carolina (1776), opened by declaring, “That all political power is vested in and derived from the people only.” New Hampshire (1776) based its constitution’s power on the “free suffrages of the people of said colony.” This reasoning aligned with another document from 1776, the Declaration of Independence. That work of the Second Continental Congress declared that governments derive “their just powers from the consent of the governed.” This point itself derived from the Founders’ commitment to human equality, expressed by the fact that no person should rule another without pre-conditioned agreement.
Second, these constitutions in general got the purpose of government right. Massachusetts’ constitution (1780), penned by John Adams, said the purpose of government resided in the power “to furnish the individuals who compose it with the power of enjoying, in safety and tranquillity, their natural rights and the blessings of life.” This reasoning, too, aligned with the Declaration of Independence. It declared that all human beings possessed “unalienable rights,” meaning claims on others that no one else could infringe. It then said that “to secure these rights, governments are instituted among men.” Government exists because we have these rights but cannot adequately enjoy them due to threats from others. Political society forms to offer protection of these rights for their better use by each person.
Third, however, these state constitutions tended to struggle to rightly structure their institutions. In particular, they correctly sought a government organized around the concept of separation of powers. WE must understand this point before saying how they struggled with it. This theory said that government power is based on the rule of laws. However, law requires three functions to rule properly.
First, one must make law—the legislative power. Some may say we could stop there. However, that would leave government inadequate to its task. We know that merely saying what someone should do does not always get obedience. Sometimes people will disobey the law even when they know it. Think of many of us on highways with speed limits. That brings in the second task of government under the rule of law. A government must enforce those made laws—the executive power. Executive power brings coercive force to bear in service of the laws, to make sure people obey them and thus do not infringe on rights. Third and finally, a tribunal must exist to interpret and apply the law when disputes arise regarding it—the judicial power. People may know the law but not agree on whether someone broke or followed it. That factual question is what juries often decide in trials. People may agree on what happened but disagree about the wording of the law in relation to what happened. Judges make these calls, trying to apply the law’s words faithfully to the actions in a case before him or her. Together, these three powers ensure the law rules, both our constitutions and the statutes made under them.
Most state constitutions affirmed separation of powers. Article VI of the Maryland constitution’s declaration of rights (1776) said, “That the legislative, executive and judicial powers of government, ought to be forever separate and distinct from each other.” However, many states structured their separation of powers to make the legislative power too strong and the other branches too weak. Doing so did not deny separation of powers on paper. But it did so in practice.
States such as Pennsylvania and Virginia in particular created very weak executives. They quickly came under the control of the state legislatures. James Madison saw this problem in the 1780s. Having seen what happened with state constitutions, Madison wrote in Federalist 48 that, “The legislative department is everywhere extending the sphere of its activity, and drawing all power into its impetuous vortex.” In some sense, legislative dominance was natural. Legislative power made the laws that other branches must then carry out. That gave it an advantage. Also, in a popular government, people would see themselves more in the numerous, lawmaking legislature than the much different executive or judicial branches.
We must not underestimate the problem with separation of powers failing in practice in these states. The Founders knew and said that any combination of legislative, executive, and judicial power together led to tyranny. It did so because it allowed one entity to take over the laws and start using them as it wished. The law then became a tool for human beings to oppress one another, not a guide and restraint to rule over them.
Thankfully, not all constitutions fell prey to this problem. New York’s 1778 constitution, for example, gave a strong executive that maintained independence from that state’s legislature. It became an example members of the Constitutional Convention looked to for constructing our American President. In other ways, our Founders learned from the other states’ mistakes in how they constructed the national Constitution. They put in a system of checks and balances to work alongside separation of powers. These checks gave each branch ways to limit the power of the other branch. Ambition would check ambition, as Madison would write in Federalist 51. Sometimes, these checks even meant giving a little of one branch’s power to another. Thus, the president’s veto power is a legislative power to make laws. But it helps protect that office against legislative encroachments. Even the powerful Congress possesses the impeachment power, lest a president or judges usurp their power or the Constitution’s.
Thus, we can be thankful we no longer have the state constitutions of the 1770s and 1780s. They needed improved upon. But we also should thank them for the good they did. They set out the proper origin and purpose of government, a commitment we only reinforced through our subsequent history. And they taught us how to structure our government better. They gave us the experience that showed how to separate governmental powers to support the rule of law and by it human equality and liberty.
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Framing Early State Constitutions and Developing a Republican Form of Government, Under Threat of Battle
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, James C. Clinger Essay 40: Framing Early State Constitutions and Developing a Republican Form of Government, Under Threat of Battle – Guest Essayist: James C. Clinger, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, James C. ClingerThe federal, or United States Constitution, drafted during a hot summer in Philadelphia in 1787 was not the only constitution written in that time period, nor was it the first. Earlier, as the former American colonies became newly formed states, they adopted new constitutions that would later influence other states and even the form of the federal Constitution. These documents became the first statements of how republican government would be framed and put into practice.[1] According to Akhil Reed Amar, within these constitutions were “certain overarching elements that are now so commonplace that we forget how truly revolutionary they were in 1776: writtenness, concision, replicability, rights declaration, democratic pedigree, republican structure, and amendability.”[2]
Most of the new constitutions roughly resembled the colonial charters that they replaced. Connecticut and Rhode Island even retained their colonial charters with only minor modification. But some states began a serious effort to craft their own, unique constitutions which would both empower and constrain state government as well as protect the rights and liberties of their people. New Hampshire drafted its constitution even before independence was declared, and several others followed suit while the revolution was being fought.[3]
Many of those early state constitutions were hastily drafted under adverse conditions. The threat of approaching British troops forced some constitutional conventions to adjourn and reconvene multiple times. Some states’ constitutional framers were not completely convinced that the revolution would be successful.[4] According to Article 26 of New Jersey’s constitution of 1776, “if Reconciliation between Great Britain and these Colonies should take place, and the latter be again taken under the Protection and Government of the Crown of Great Britain, this Charter shall be null and void, otherwise to remain firm and inviolable.”
There were certain commonalities in the various constitutions, but a number of unique features in particular states. All states provided for some separation of powers which would become a distinctive feature of both state and federal governments. Most states provided for a fairly weak executive, although in many respects the chief executive, almost always referred to as a governor, was more powerful than any executive in the national government under the Articles of Confederation. Many states did not provide for a veto for their governor, and some gave veto authority to a plural body, sometimes called a council of censors.[5]
Most state legislatures were bicameral, although both Pennsylvania and Georgia established a single chamber in their initial constitutions. There were usually property requirements to hold office in the legislature, with stricter requirements for members of the upper chamber. The lower chambers’ members were directly elected by the voters. This was usually the case for the members of the upper chamber, which today in every state is called a senate, but in Maryland the senators were chosen indirectly with voters selecting electors who would then select the members of the senate. A few states later adopted this method, and a few for a short time used electors to select their governor. Direct election of the governor was established in only five of the original thirteen states’ initial constitutions. In the remaining states, the legislature would select the chief executive.[6] Under the initial state constitutions, judges were either appointed by the legislatures or by the governor with approval of the legislature or at least the senate. The legislature was generally permitted to change the compensation of judges at will, thus diminishing the courts’ reputations for independence.[7]
The terms for almost all offices in the early constitutions were very short. With one exception, all states limited the length of lower legislative house members’ terms to one year. South Carolina had two-year terms. Most states’ senators served terms of one or two years, as did most governors and many judges. These brief terms were a primary check on the behavior of public officials.[8]
The early state constitutions established suffrage requirements for state voters. Most states required property holding requirements, but those varied dramatically from state to state. Property requirements might also vary for the electors of different offices. To vote in elections for the lower legislative chamber, Pennsylvania and North Carolina offered the franchise to all freemen who paid taxes. To vote for members of the state senate, North Carolina required ownership of fifty acres of land. New Hampshire imposed a poll tax. New Jersey had a minimum property requirement of fifty pounds value that applied to suffrage for all state office.[9] These voter qualification requirements had implications for voting in elections for the federal House of Representatives, once the U.S. Constitution took effect, since Article I, Section 2 stipulates that the voters for the U.S. House of Representatives “shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.”
Some, but not all, of the new constitutions included a bill of rights or a declaration of rights. Some of the language in these declarations was largely precatory, with admonitions that state government “ought” not to do certain things, such as impose excessive bail. Other language seems to impose more of a binding commitment on the government. Some of the rhetoric is fairly sweeping, such as the declaration in the Virginia Declaration of Rights that all men are “born free.” The absence of a bill of rights in the federal Constitution was a contentious issue during its ratification. But that issue was resolved with the passage of the first ten amendments. These state declarations became a model for the Bill of Rights, although there were notable differences between the first state declarations and the federal Bill of Rights. The state declarations usually referred to rights to jury trials, the free exercise of religion, and the right to bear arms. The very first state constitutions did not refer to a general freedom of speech, although later constitutions did. Notably, most state constitutions did not include a state equivalent of the federal Establishment Clause.[10] Some constitutions, in fact, authorized state government to support religious institutions[11] and several authorized religious tests for holding certain public offices.[12] The initial constitutions of the original thirteen states did not mention slavery as an institution, although a few rhetorically declared that the British monarch had enslaved the American colonies. Provisions defending, limiting, and abolishing slavery within different states would appear in subsequent constitutional revisions in the coming years.[13]
Some of the early state constitutions were hastily written and did not even provide a provision for amendment. Thus, constitutional changes took place through wholesale re-writes of the documents. Many states drafted entirely new constitutions in the first few years of the republic, and more constitutions were written and ratified as new states were added to the union. Many of those constitutions borrowed from the existing constitutions of other states. For example, about 70% of the 1792 constitution of the new state of Kentucky was taken almost word for word from the Pennsylvania constitution of 1790.[14] Of course, many features of the federal Constitution borrowed somewhat from the state constitutions. Most early state constitutions or amendments were adopted through a legislative process. The constitution of the Commonwealth of Massachusetts was one of the first to require approval by voters. In that instance, the document was voted upon by local towns and townships. Today, most states require a public referendum to approve new constitutions or constitutional amendments.[15]
Acknowledgements: The author would like to thank Dr. James Humphreys for his comments on an earlier draft of this essay. Any errors are the responsibility of the author.
[1] Adams, Willi Paul.. The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era / Willi Paul Adams; Translated by Rita and Robert Kimber; with a Foreword by Richard B. Morris. Expanded ed. Rowman & Littlefield Publishers; 2001.
[2] Amar, Akhil Reed. The Words That Made Us: America’s Constitutional Conversation, 1760-1840. Basic Books,
2021.
[3] Adams, loc cit.
[4] Squire, Peverill. The Evolution of American Legislatures: Colonies, Territories, and States, 1619-2009. Ann Arbor: University of Michigan Press. p.83
[5] Squire, loc cit., p. 87
[6] Lutz, Donald S. “The Theory of Consent in the Early State Constitutions.” Publius 9, no. 2 (1979): 11–42.
[7] Tarr, G. Alan. “Contesting the Judicial Power in the States.” Harvard Journal of Law & Public Policy 35, no. 2 (2012): 643-661.
[8] Lutz, loc cit.
[9] Lutz, loc cit.
[10] Lutz, Donald S. “The State Constitutional Pedigree of the U.S. Bill of Rights.” Publius 22, no. 2 (1992): 19–45.
[11] Vincent Phillip Muñoz, “Church and State in the Founding-Era State Constitutions.” American Political Thought 4, (Winter 2015):1-38.
[12] Wilson, John K. “Religion Under the State Constitutions, 1776-1800.” Journal of Church and State. 32, no. 4 (1990): 753-773.
[13] Herron, Paul E. “Slavery and Freedom in American State Constitutional Development.” Journal of Policy History 27, no. 2 (2015): 301-336.
[14] Ireland, Robert M. “The Kentucky Constitution.” Clinger, James C., and Michael W. Hail. Kentucky Government, Politics, and Public Policy. Lexington, KY: The University Press of Kentucky, 2013.
[15] Tarr, 2000
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Ken Nahigian
BlogPrior to joining the firm, Ken served as Chief Counsel and Deputy Staff Director of the U.S. Senate Commerce Committee where he served under then-Chairman Ted Stevens of Alaska. Ken also served under Committee Chairman John McCain. Ken joined the Committee after serving as an attorney in the Issues and Appeals Division of the law firm Jones Day, and also as Senior Law Clerk to the Honorable Donald Ivers on the U.S. Court of Appeals for Veterans’ Claims.
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BlogGail MacKinnon joined the Motion Picture Association (MPA) in November 2017 and is the current Senior Executive Vice President for Global Policy & Government Affairs. A skilled senior executive with experience in public policy advocacy, issues management, and strategy development, Gail oversees the MPA’s government relations portfolio and policy agenda, as well as its international advocacy and policy, including in the APAC and EMEA regions.
Previously, Gail served as Executive Vice President, Government Relations for Time Warner Cable, where she led all aspects of federal, state, and local government relations for the telecommunications company. She positioned the company as a trusted advisor to government leaders on a range of public policy issues; including video reform, cybersecurity, tax, and privacy.
Prior to her role at Time Warner Cable, Gail was Senior Vice President of Government Relations at the National Cable & Telecommunications Association. She has held senior positions at Viacom, CBS Inc., Telecommunications Inc., and Turner Broadcasting. She began her career on Capitol Hill, serving as Legislative Director for Congressman Jack Fields (R-TX).
In 2016, Gail helped co-found WE Capital, a consortium of women in the Washington, D.C. business community investing in female-led startups focused on social impact work. She was named one of Washingtonian’s Most Powerful Women in 2019. Gail received a Bachelor’s degree from Georgetown University.
Moses Uvere
BlogBorn and raised in Dallas Texas, Moses Uvere was the first born to Patience and Gabriel Uvere, immigrants who came to America to seek “the American Dream.” Being brought up by parents from a different country, Moses witnessed firsthand what “the American Dream” was all about and the struggle to achieve a better life. Living in poverty-stricken areas Moses had an up-close view of growing up poor, sharing clothes with his brothers, wearing hand-me-downs, and not getting much during the holidays. Moses was an active kid who always played sports and was a fine football prospect in high school where his career was cut short. Due to the fact that his mom left the family, he the eldest of the four had to grow up quickly to help his dad raise his two little brothers and his little sister. “The things in my life didn’t break me, but made me the man I am today.” Music had always been a part of his life and after being in the group minority authority for a few years, Moses struck out on his own. He met up with Dustin Cavazos who produced his first release, From Worse to Better. (2008) The album is a reflection of past experiences that he has seen and lived. A few years later, (2011) Uvere signed a record deal with Universal / Motown producer Geoff Rockwell under the imprint of chaos creative and released an album entitled Mind the Gap which received critical acclaim. Following that album, Uvere had his highest-profile release yet with Never Been Better which led him to be in front of 13.9 million people (according to anchor marketing), with his latest release Kingdom of the Fallen. The album reached the top 100 of the iTunes charts and was followed up with a performance at the historic Klyde Warren Park as the first Christian hip hop artist in its history to be invited as a headliner. Each project of his musical offerings was influenced by artists such as Kanye West, Common, Pigeon John, Issac Hayes, and Musiq Soulchild. He is a husband, a father of three, and currently the Lead Pastor at the Vine of Life in Garland, TX.
Shane Tews
BlogShane Tews is a nonresident senior fellow at the American Enterprise Institute, where she focuses on cybersecurity issues, including privacy and data protection, next-generation networking (5G), the Internet of Things, international internet governance, digital economic policy, information and communications technology, artificial intelligence (AI) and the metaverse, cryptocurrency and non-fungible tokens, and emerging technologies. She is also president of Logan Circle Strategies, a strategic advisory firm.
She is vice chair of the board of directors of the Internet Education Foundation; chair of the Internet Society’s Washington, DC, chapter; member of the board of SeedAI; chair of the board of directors at TechFreedom; and chair of the Dynamic Coalition on the Internet of Things of the Internet Governance Forum.
Previously, Ms. Tews served as co-chair of the Internet Governance Forum USA. She was a member of the board of the Information Technology and Innovation Foundation, the Information Technology Industry Council, and Global Women’s Innovation Network. She also managed internet security and digital commerce issues as vice president of global policy for Verisign. She began her career in the George H. W. Bush White House as a deputy associate director in the Office of Cabinet Affairs and later moved to Capitol Hill as a legislative director for Rep. Gary Franks (R-CT).
Ms. Tews studied communications at Arizona State University and American University, where she graduated with a bachelor’s degree in general studies with an emphasis on communications and political science.
Experience
Education
BA, public relations and political science, American University
Attended Arizona State University
Laws of Nature and of Nature’s God: Preserving the Purpose of the Declaration of Independence Through the United States Constitution
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 39: Laws of Nature and of Nature’s God: Preserving the Purpose of the Declaration of Independence Through the United States Constitution – Guest Essayist: Tony Williams, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsThe Americans of the founding period were a strongly Protestant people of various denominations including dissenting Presbyterians, Baptists, and Congregationalists. Some historians have estimated that Protestants made up over 98% of the American population. Their Protestantism was characterized by a strong dissenting tradition against religious and civil tyranny as well as a strong streak of individualism.
Their Protestantism—especially the Puritan tradition—was also exemplified by appeals to the natural law in its covenant theology that was consistent with Lockean social compact theory. Covenant theology caused Americans to view themselves as a Chosen People of a new Israel who formed a covenant with God. The natural law of covenant theology was consistent with both reason and revelation as they reconciled their reason and faith in the natural law and natural rights philosophy of the American Revolution.
The American founders drew from a variety of traditions in arguing for their natural rights and liberties. Ancient thought from Greece and Rome, the English tradition, and the ideas of John Locke and other Enlightenment thinkers combined with Protestantism for a rich tapestry. While the Enlightenment provided a strong influence on the founders, the contribution of their religious beliefs has often been downplayed or ignored. The average American colonial farmer or artisan may not have read John Locke’s Two Treatises of Government or ancient philosophy, but they heard dissenting religious ideals and Lockean principles from the pulpit at religious services.
Toward the end of his life, Thomas Jefferson had cause to reflect on the meaning of the Declaration of Independence, a document which later influenced the United States Constitution. He wrote to Henry Lee in 1825 about the purpose of the Declaration:
“This was the object of the Declaration of Independence. Not to find out new principles, or new arguments, never before thought of, not merely to say things which had never been said before; but to place before mankind the common sense of the subject, in terms so plain and firm as to command their assent…it was intended to be an expression of the American mind, and to give to that expression the proper tone and spirit called for by the occasion. All its authority rests then on the harmonizing sentiments of the day.”
The “harmonizing sentiments” of the 1760s and 1770s supported a natural law opposition to British tyranny in the American colonies. James Otis was one of the earliest articulators of natural law resistance. In 1764, he wrote, “Should an act of Parliament be against any of his natural laws, which are immutably true, their declaration would be contrary to eternal truth, equity, and justice, and consequently void.”
In 1774, Thomas Jefferson expressed the same sentiments in his Summary View of the Rights of British America. In the pamphlet, he wrote that God was the author of natural rights inherent in each human being. The Americans were “a free people claiming their rights, as derived from the laws of nature, and not as the gift of their chief magistrate… the God who gave us life gave us liberty at the same time: the hand of force may destroy, but cannot disjoin them.”
A year later, a young Alexander Hamilton wrote a pamphlet, Farmer Refuted, in which he eloquently described the divine source of universal rights. “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records. They are written, as with a sun beam, in the whole volume of human nature, by the hand of the divinity itself; and can never be erased or obscured by mortal power.”
These “expressions of the American mind” were common formulations of natural rights that influenced the Declaration of Independence. The four mentions of God in the document demonstrate their understanding of the divine, but it also showed that God was the author of good government according to natural law.
First, the Declaration appeals to the “separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.” This first mention of God is that of Protestant and Enlightenment natural law. They saw God as the author of truth in the moral order of the universe. This moral order defined their thinking about republican self-government.
Second, the Declaration asserts that, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” God is the Creator and author of natural rights in this formulation. Since rights are from a higher authority, no earthly power can violate an individual’s inherent rights. Interestingly, God here acts as a supreme legislator who makes the natural law and grants natural rights.
Third, the Declaration appealed to “the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these United Colonies are, and of Right ought to be Free and Independent States.” God is a judge who authored the idea of justice and who judges human actions. God here represents the judicial branch of government.
Fourth, the Declaration stated that, “With a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.” Americans believed that God was a providential God who intervened in human affairs and protected his Chosen People. This conception of God represents the executive branch of government.
The Declaration of Independence was a reflection that the American natural rights republic was rooted in the natural law. Reason and divine revelation supported the natural law that shaped a good government built upon the understanding of human nature and the rights given to human beings by God.
In Federalist #1, Alexander Hamilton explained the entire purpose of establishing free government based upon the principles of the Declaration of Independence and Constitution. He stated that Americans had the opportunity and responsibility to form good government by “reflection and choice,” not by “accident and force.” The United States was founded uniquely upon a set of principles and ideals.
In 1861, President Abraham Lincoln had occasion to reflect upon the principles of the American Founding. Using a biblical metaphor, he thought that the Declaration of Independence was an “apple of gold” because it contained the foundational principles of the new country. The Constitution was the “picture of silver” framing the apple with the structures of republican government, thus preserving the purpose of the Declaration. In the mind of Lincoln—and those of the Founders—an inextricable link bound together the two documents in creating a free government.
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From a Declaration of Independence to a Constitution: The Laws of Nature and Preservation of the United States of America
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Eric Wise Essay 38: From a Declaration of Independence to a Constitution: The Laws of Nature and Preservation of the United States of America – Guest Essayist: J. Eric Wise, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Eric WiseEverything comes back to the Declaration of Independence. In a way, the seeds of the Federalist Anti-federalist dispute in the framing of the Constitution were sown in the Declaration.
The Declaration of Independence established the basis of just government as consent as against the divine right of kings. To quote Thomas Jefferson, “the mass of mankind has not been born with saddles on their backs, nor a favored few booted and spurred, ready to ride them.”
Consent leads to forms of majority rule, although it must be a reasonable and restrained majority which respects the rights of the minority. Consent requires some kind of deliberation for the sake of forming consensus, and public deliberation over a proposed charter leads to disputes for and against.
But that is not the sole connection. The Declaration of Independence establishes a right of revolution. Whenever a government becomes abusive of the ends of just government it is the right of the people to alter or abolish it. Revolution is an extra-legal right. The oppressions of King George – “[a] Prince whose character is thus marked by every act which may define a Tyrant” – entitled the colonists to rebel, illegally.
The Declaration of Independence – a “unanimous Declaration of thirteen united States of America” – also stated that “That these United Colonies are, and of Right ought to be Free and Independent States.” A new nation was born that was having a hard time saying clearly whether it was one nation or many. Babes lisp, and so it was with the young United States.
The first charter of the United States was entitled the Articles of Confederation and Perpetual Union. Confederation comes from the Latin con meaning “with or together” and foederare meaning treaty or league. Again, the early babble of United States suffered some polysemy. It was a union that was perpetual but also a treaty of several states.
The Articles of Confederation, as a practical matter, were inadequate. Among other things, the new government was unable to enforce its laws directly and the scope of its powers was narrow, particularly in commercial and financial matters. The result was a chaos of creditor-debtor disputes and a moribund economy that began to threaten the viability of the United States. Both France and Britain anticipated the collapse of the new United States, and were eager to pick up the pieces.
A convention was called in 1787 to repair the defects of the Articles. The convention produced a proposal for an entirely new charter, the Constitution, to replace the Articles. The Constitution would have many new features, including drawing its authority directly from the people rather than a compact of states, exclusive coinage and bankruptcy power, and a radically new executive power embodied in a president of the United States. It also proposed that it would be deemed adopted when ratified by only nine states.
This last proposal flatly contradicted the Articles. The Articles required a unanimous vote of its member states for amendment. Like the revolution the proposal for a new Constitution, though an appeal to ballots and not bullets, was illegal.
The ground for the adoption of the Constitution was similar to that of the Revolution, an appeal to the “necessity” and (echoing the Declaration) the “law of nature and nature’s God.” The Articles were incompetent and had to be “thrown off” to for the “preservation” the country. Federalist 43.
In politics it is important to pick the name of your movement. If you do not, your political adversaries will pick it for you. The proponents of the new Constitution, led by Alexander Hamilton, James Madison and John Jay, took the name Federalist. Opposition to the new Constitution was labeled Anti-federalist, locking in rhetorical disadvantage.
Anti-federalists argued with some alarm that the new Constitution permitted the national government to resort to force. Federalists argued that the states were protected from invasion by the Federal power by their militias and from domestic insurrection or invasion by the new federal government. Federalist 28.
The Anti-federalists argued that the confederal form should have been preserved. The Federalists argued that the proposed government was “partly federal and partly national.” Federalist 39.
Anti-federalists argued that the convention did not have the authority to adopt the Constitution. The Federalists argued that the new Constitution was “necessary.” Federalist 40.
Anti-federalists argued that the proposed Constitution was too difficult to amend, and that it should be amended whenever a department of the government exceeds its authority. Federalists rebutted that frequent appeals to the people would undermine the authority and reasonableness of the new government. Federalist 49.
Anti-federalist argued that the judiciary was too independent. Federalists argued that the new Constitution’s judiciary was its least dangerous branch, and that unconstitutional judicial decisions could be ignored. Federalist 78.
The Federalists prevailed, but experience has at times exposed weaknesses in the Federalist’s arguments. The federal government has overtime supplanted the states in their power. Appeals to the people to amend their Constitution have not just become infrequent, but have ceased almost altogether: The Constitution has not been amended “soup to nuts” in more than 50 years. And this has happened as the judicial power has expanded under the doctrine of a “living constitution” to displace the amendment function; this raises the question whether the Constitution can continue to be the people’s document if the courts, and not they, are its author in key respects.
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Where No Government Had Gone Before: The Enduring Success of America’s Declaration of Independence
90 in 90 2022, Tom Hand, 6. Guest Constitutional Scholar Essayists, Blog Essay 37: Where No Government Had Gone Before: The Enduring Success of America’s Declaration of Independence – Guest Essayist: Tom Hand, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Tom Hand, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThe Declaration of Independence was America’s first and, arguably, greatest document. It not only laid out the reasons why we should leave the British Empire but also eloquently explained a different set of rules by which a nation should be governed. The background leading to the creation of this document is critical to understanding its content.
At the end of the French and Indian War (or Seven Year’s War) in 1763, the British Empire’s treasury was depleted due to the terrible expense of the war. Although it had been fought in several parts of the world, King George and Parliament decided to recover much of the cost on the backs of their American subjects.
Parliament enacted the Stamp Act (taxes on most printed materials) in 1765 and then the Townshend Act (taxes to fund royal officials, as well as language reinforcing Parliament’s right to tax the colonies) in 1767. While Parliament felt it reasonable that the colonies share of the cost of the recent war, the colonists felt quite different.
To understand where the Americans were coming from, it is important to understand that for much of our early history the British Empire had neglected their American colonies. As a result, Americans had developed a strong independent streak. Out of necessity, our early leaders created their own assemblies and learned how to govern themselves.
Colonial officials reasoned that since the colonies were not directly represented in Parliament, that legislative body did not have the right to levy taxes on them. Not surprisingly, tensions rose over the course of the next few years as the Americans resisted and found ways to avoid paying these new taxes.
Following the Gaspee Affair in 1772 in which colonists burned a British ship, and the Boston Tea Party in 1773 when the Sons of Liberty threw a shipload of tea into Boston Harbor, Parliament attempted to assert its authority with a series of bills known in America as the Intolerable Acts (in England they were called the Coercion Acts).
They essentially stripped Massachusetts of most of the freedoms it had enjoyed since its founding. The harshness of these acts first surprised and then outraged people in all thirteen colonies. People reasoned if England could do that to one, they could do it to all.
To address this crisis and craft a response, colonial leaders convened the First Continental Congress in September 1774. They met in Carpenters’ Hall in Philadelphia, and delegates attended from 12 of the 13 colonies; Georgia chose not to attend. They decided to impose a boycott on British goods and send King George a list of their grievances, but their petition fell on deaf ears.
As one month led into the next in 1775, matter grew worse. On April 19, American militiamen first fought British regulars at the Battle of Lexington and Concord, and on May 10 colonial leaders convened the Second Continental Congress in Philadelphia.
Most of the representatives still hoped for a reconciliation with England. After all, most still thought of themselves as English. Their ancestors had come over from England, their laws were based on English laws, and we spoke the same language.
Not surprisingly, the first point of business for Congress was to try to forge a reconciliation with England, and John Dickinson led this effort. Because most colonists viewed Parliament and not the King as the real problem, they sent a second petition, the so-called Olive Branch petition, directly to King George in July 1775. They soon found out they did not have a sympathetic ear with the King.
On August 23, in reaction to the Battle of Bunker Hill on June 17, Parliament passed the Proclamation of Rebellion which formally declared the colonies to be in a state of rebellion. By the time Congress’ petition arrived at court in late August, King George refused to even receive it, and the chance for reconciliation was essentially at an end.
Notified in late 1775 of these developments, John Adams and others who saw independence as the only choice for the colonies began to agitate for it. Then, in January 1776, Thomas Paine, an Englishman newly arrived in America, published a pamphlet called “Common Sense” which advocated for complete independence from England. His timing was perfect.
Much like Harriett Beecher Stowe’s “Uncle Tom’s Cabin” crystallized the abolitionist movement in the 1850s, Paine’s pamphlet presented to the American people a sound and well-reasoned argument for why separation from England made sense. Ideas that only months before were almost too extreme to discuss were now seen as the best alternative. The table was now set for the great debate to reach its inevitable conclusion.
The discussions were intense, but by late June enough progress had been made toward securing the votes that Congress formed a “Committee of Five” to draft a resolution declaring independence. This committee which included John Adams, Benjamin Franklin, Robert Livingston, Roger Sherman, and Thomas Jefferson wanted Adams to draft the document. However, Adams insisted that Jefferson do the writing with Adams editing it as needed.
On July 2, the Congress approved the Lee Resolution, introduced by Richard Henry Lee of Virginia, calling for independence from Great Britain. The Committee of Five promptly submitted its declaration document to Congress which they approved, after several modifications, on July 4. Thus, in the minds of the delegates, and soon in the eyes of the world, our nation was born.
The words contained in the Declaration of Independence were some of the most revolutionary ideas ever printed. When Congress approved the words, “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable rights, that among these are Life, Liberty, and the pursuit of Happiness,” they were going where no government had gone before.
The preamble further declared that “Governments are instituted among men, deriving their just powers from the consent of the governed.” Given that, in 1776, hereditary monarchies ruled all the nations of the earth, this too was a radical doctrine.
The Declaration of Independence also listed 27 grievances the King had committed against his subjects in America, essentially justifying our decision to separate from England.
These complaints ranged from “He has dissolved Representative Houses repeatedly” to “He has made Judges dependent on his will” to “He has kept among us, in times of peace, Standing Armies without the consent of our legislatures.” Taken together, they made a compelling case for leaving the British Empire.
Ultimately, the American colonists in 1776 were left with two choices. They could either completely submit to the authority of Parliament and the Crown, becoming vassals of England, or declare complete independence and thereby control their own destiny. Time has shown that they chose wisely.
So why should the background to the Declaration of Independence matter to us today? It is important to know that our Forefathers tried to reconcile with the mother country and that rebellion was not our preferred choice.
We also must recognize the intensity of the debate and the widely varying opinions regarding the proper course of action to take and understand that our Forefathers agonized over their decision.
Finally, we must appreciate that these words revolutionized the way that not only Americans but also the rest of the world viewed the role of government and the very concept of where the right to govern originates.
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The U.S. Constitution on Managing British Colonial Governance in North America and Careful Admission of New States to the Union
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 36: The U.S. Constitution on Managing British Colonial Governance in North America and Careful Admission of New States to the Union – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerPrior to the drafting and ratification of the United States Constitution, our founders had nearly two hundred years of colonial governance from which to draw lessons regarding both the proper, and the improper, management of such territories, and the best way to add new lands to a governmental structure.
Among the threads that run through the Constitution, the assurance of fair and equal treatment of all citizens and the necessity of “due” process as a way to protect those citizens’ rights is repeated in a myriad of ways.
When it came to colonization and settlement, the founders could draw on the history of Great Britain’s management of the colonies (and, in many cases, their mismanagement) to ensure that the deficiencies in British governance could be corrected and their mistakes not repeated.
A central problem was consistency in the development of colonies and the application of British law. Colonial charters, the documentation actually allowing British subjects to establish colonies in North America, could be granted by the King (directly) or by the King’s officers, and they were granted to both corporate entities and groups of individuals.
But these charters could also be revoked, and most colonial charters were, at some point or another, revoked and reinstated by the Crown.
If Americans were going to settle the western portions of the recently-unionized states, they would have to be guaranteed, under the law, that the same kinds of arbitrary actions that plagued British colonial governance would not be continued by an American government.
Not all were even in agreement about such expansion (that became encompassed in the 19th century as the Monroe Doctrine. An Anti-federalist, writing under the name Brutus I in response to the Federalist papers written by James Madison, John Jay, and Alexander Hamilton under the pseudonym Publius, voiced deep concern about American empire building.
Jonathan Marshall, writing for Inquiry Magazine in 1980 (and republished in The Journal of Libertarian Studies) wrote:
That skepticism is certainly shared when viewed in the context of another failure of British rule—the abandonment of the principle of “salutary neglect.” Discussed at length by one of the earliest historians of the American Revolution, Dr. David Ramsay (a revolutionary-era politician and physician), the concept is straightforward: the best way for a colony to prosper is for the parent nation to take a “light touch” in terms of direct governance, to let the colonists themselves make decisions and solve problems.
As the American colonies grew more powerful and determined to make decisions on their own, the British crown became more determined to bring them to heel. This only served to frustrate and anger the colonists, and eventually led them to declaring themselves free and independent states.
The Constitution addresses these concerns squarely—most clearly in Article IV, Section 3, more commonly known as the Admissions Clause.
The clause has two parts—the first, granting power to Congress to admit new states. The second, a restriction on that power, saying that Congress cannot create a new state by dividing the territory of an existing state or by joining two states together, without the consent of the legislatures of those states.
Both are essential to the practice of good governance. The people of the United States and potential states, i.e., territories know that there is one body with the power to admit states into the Union. It cannot be done or denied arbitrarily by a President, or the President’s bureaucratic functionary.
The second clause is almost more important than the first since it essentially prevents a state from being punished or the federal government otherwise abusing its powers by tearing apart states or forcing them to join with other states against their will. There has to be agreement from that state’s duly elected legislative representatives.
It is, essentially, another form of Due Process, protecting the rights of these citizens from arbitrary or capricious behavior on the part of the Federal Government.
Interestingly enough, though not outlined in the Constitution, the process for newly-settled lands to become states has largely been codified over time. Public lands are declared U.S. territory. Through a variety of means, the people in that territory vote to declare their intent to become a state, and then Congress passes an “enabling act” legislating that the territory becomes a state.
One aspect of this, for many of the states that entered after the middle of the 19th century, was to declare that all “unappropriated public lands” within those territories to be the property of the United States itself. This was a way of “clearing title” to those lands for the purpose of encouraging further settlement (clear title, as the property rights scholars Hernando DeSoto and Richard Pipes have both written, is an essential element of strong protection of private property). It is also the reason why, as a percentage of a state’s territory, so much more land is owned by the federal government west of the Mississippi River (which has had huge implications for the balance of power between federal and state governments for the last half-century).
The British government had both successes and failures when it came to their management of the North American colonies. The authors of the Constitution learned from those mistakes and crafted clear language to safeguard against making them again.
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Virginia’s House of Burgesses, Rights of the British Colonies, and Establishing Representative Governing in America
90 in 90 2022, Tom Hand, 6. Guest Constitutional Scholar Essayists, Blog Essay 35: Virginia’s House of Burgesses, Rights of the British Colonies, and Establishing Representative Governing in America – Guest Essayist: Tom Hand, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Tom Hand, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesThe Colony of Virginia was established at Jamestown by the Virginia Company in 1607 as a for-profit venture by its investors. To bring order to the province, Governor George Yeardley created a one-house or unicameral General Assembly on July 30, 1619.
This body of men was comprised of an appointed Governor and six Councilors, as well as 22 men called burgesses (a burgess was a freeman of a borough in England). Most importantly, the burgesses were elected by the eligible voters (free white males) in the colony, thus making this General Assembly the first elected representative legislature in British America.
In 1642, Governor William Berkeley split the legislature into two houses initiating a bicameral assembly, with the elected representatives in the newly created House of Burgesses and the appointed Councilors of State meeting separately.
It was here, the leading men of Virginia met and debated the great issues of the day. Until the 1760s, this legislative body largely determined how the colony would be governed, including how its citizens would be taxed.
This began to change in 1765 when Parliament passed the Stamp Act which imposed a tax on paper products such as newspapers, pamphlets, and legal documents. Importantly, it represented the first time Parliament placed a direct tax on the colonies in North America.
This revenue grab did not go over well with the colonists who were used to controlling their own internal affairs. The debates and the documents that flowed from the House of Burgesses after that act spearheaded our nation’s drive for independence from England.
On May 29, 1765, Patrick Henry introduced a series of resolutions known as the Virginia Resolves. These declarations essentially denied Parliament’s right to tax the colonies since the citizens in America did not have representation in England.
By late June, many newspapers throughout the colonies had printed these resolutions which inflamed the passions of people. The “no taxation without representation” sentiments led to the Stamp Act Congress of 1765, marking the first time the colonies joined forces against the Mother Country.
The years passed and the relationship with England continued to deteriorate as the Mother Country introduced more burdensome legislation. In 1774, after Parliament passed the Boston Port Act which closed the port of Boston, the House of Burgesses again voiced their opposition in a series of resolves. The result was that Governor Lord Dunmore dissolved the assembly.
However, the Burgesses would not be denied their right to assemble and immediately convened in a public house called the Raleigh Tavern. Here, they called for a series of five Virginia Conventions to meet in defiance of the governor.
It was at the Second Virginia Convention on March 23, 1775, that Patrick Henry gave his most famous speech by concluding, “Is life so dear, or peace so sweet, as to be purchased at the price of chains and slavery? Forbid it, God Almighty! I know not what course others may take, but as for me, give me liberty or give me death.”
In addition to Patrick Henry (Burgess from 1765-1776), the men who passed through the House of Burgesses was a group that had an outsized influence in the founding of our great nation. Its alumni list is a “Who’s Who” of Founding Fathers:
George Mason (Burgess from 1758-1760) who wrote the Fairfax Resolves in 1774 which denied Parliament’s authority over the colonies, and in 1776 formulated Virginia’s Declaration of Rights, a precursor to our Declaration of Independence and Bill of Rights.
Thomas Jefferson (Burgess from 1769-1774) whose 1774 paper A Summary View of the Rights of British America clearly expressed our grievances against King George and, of course, he authored our landmark Declaration of Independence in 1776.
George Washington (Burgess from 1758 to 1775) who commanded our Continental Army in the American Revolution, was our first President, and became the Father of our Country.
With the advent of the new Virginia Constitution in 1776, the House of Burgesses was finally dissolved. In its place, the new state government formed an elected Senate and an elected House of Delegates, which continues to govern the Old Dominion today. In 1780, Virginia moved its capital to Richmond, ending Williamsburg’s long run as the center of politics in America.
Sadly, the unity of these deeply patriotic men ended within a few years of achieving our independence in 1783. Defeating the British had been a cause on which all the former Burgesses could agree. With that task accomplished, they began to splinter over how to run the United States.
The Articles of Confederation under which the country operated provided a weak central government and allowed the states a great deal of autonomy. This system did not vest any taxation authority in the central government or allow for a federal standing army or navy. Many worried our new nation could not survive without a stronger federal authority.
Consequently, leaders organized a convention for the fall of 1787 to meet in Philadelphia to address issues with the Articles. Known at the time as the Philadelphia Convention but to posterity as the Constitutional Convention, the delegates did more than fix the Articles; they designed our new Constitution.
Former Burgesses like George Washington who saw the need for a strong central government were called Federalists. They argued that without this change the nation would be virtually defenseless in the face of foreign aggression. Additionally, the numerous currencies and laws of the thirteen states would tend to destabilize the nation, possibly leading to its dissolution.
Those former Burgesses that opposed the new Constitution, Anti-federalists like Patrick Henry and Thomas Jefferson, worried that creating a powerful central authority would simply replace the tyranny of the king with a different tyrant. These men preferred local control and felt states should be governed as each one saw fit.
By 1796, a mere thirteen years after the signing of the Treaty of Paris, the nation had divided into two deeply antagonistic political parties. These men, once so unified in thought and action when they were fighting for our freedom, were never able to bridge the divide regarding the proper direction for America after that freedom had been secured.
So why should the history of the House of Burgesses matter to us today?
In its day, many of the men who assembled there later assembled on the national stage to lead our country. Throughout the crisis with England, it was an eloquent and vocal proponent for American liberty and many of the ideas found in our Declaration of Independence and Constitution were first debated and refined in their meetings.
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Royal, Self-governing, and Proprietary Colonies: Advancing From British Rule Toward American Independence
90 in 90 2022, Tom Hand, 6. Guest Constitutional Scholar Essayists, Blog Essay 34: Royal, Self-governing, and Proprietary Colonies: Advancing From British Rule Toward American Independence – Guest Essayist: Tom Hand, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Tom Hand, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesWhen the English began to settle North America in the 1600s, the leaders of the various colonies had different motives. While all colonies exercised their authority in the King’s name, they were not created in the same mold, and some had more autonomy than others. In fact, there were three different types of colonies: royal, self-governing, and proprietary.
Royal colonies were owned and completely administered by the Crown. The Governor and his Council were appointed by the King and these lands existed simply to generate wealth for England. Although few land grants began as a royal colony, by the American Revolution, eight of the thirteen colonies were this type: Virginia (converted in 1624), New Hampshire (1679), New York (1685), Massachusetts (1691), New Jersey (1702), South Carolina (1719), North Carolina (1729), and Georgia (1753).
Self-governing colonies were formed when the King granted a charter to a joint-stock company which set up its own independent governing system. These organizations were essentially corporations formed to make money for the investors.
Like the entrepreneurs of today, a few men came up with an idea, presented it to their friends and associates, and asked them to invest in their plan. Their organizations had wide latitude to appoint leaders and run their business as they wished. Virginia, Massachusetts Bay, Connecticut, and Rhode Island were all initially established as self-governing colonies.
However, these colonies soon found out that their independence was on a short leash. If the colony was poorly administered like in Virginia or if the people proved troublesome like in Massachusetts, these dominions were converted into a royal colony with all the restrictions that came with it. By the time of the American Revolution, only Rhode Island and Connecticut, retained their original self-governing charter. The King always had the final say.
Proprietary colonies were land grants given by the King to one or a few favored men called proprietors. They in turn were to administer these areas for the Crown but in a manner to be determined by them. The proprietors appointed the Governor and his Council, determined the laws (but they had to be approved by the Crown), and ran the territory as they saw fit. While the King had the ultimate authority, the rule of the proprietors resembled that of a monarch.
Maryland was an example of a proprietary colony. It was established by Cecil Calvert in 1632 upon receiving a land grant from King Charles I. Lord Calvert, also known as the 2nd Baron Baltimore, wanted to develop a land where Catholics could openly profess their faith without fear of retribution.
After several starts and stops, settlers for this new colony finally arrived in 1634. The colony prospered and in 1649 Maryland passed the Maryland Toleration Act, the first law establishing religious tolerance in British North America. Although Lord Calvert never visited Maryland, the Calvert family managed the province well and never had their charter revoked.
Not surprisingly, these proprietary colonies which operated without a great deal of input from England, were not as anxious to sever ties with the Mother Country as those with more stringent controls. For example, the Pennsylvania Assembly had to replace five of its initial nine delegates to the Second Continental Congress to get a majority of delegates to be in favor of independence.
Delaware, which was another proprietary colony, had to send an extra delegate, Caesar Rodney, on a midnight 80-mile ride to Philadelphia to break the tie in their delegation so the state could vote for independence. By the time of the American Revolution, only Delaware, Maryland and Pennsylvania remained as proprietary colonies, none of which were hot beds of rebellion.
WHY IT MATTERS: So why should the way in which colonies were organized and governed matter to us today?
The three types of colonies with their different systems of government generated varying attitudes towards English rule and our independence. Understanding these conflicting feelings helps us to better appreciate why not all Americans wanted to break from the Mother Country.
What we see is that those colonies left to govern themselves were fairly content living under English rule and not as anxious to break from England. In retrospect, England may have been wiser to allow all the colonies to operate with more autonomy and to manage them in a less oppressive manner.
SUGGESTED READING: If you are interested in a deeper dive into this subject, Colonial America: A History to 1763 is an excellent book on background, founding, and development of the thirteen British North American colonies. It was written by Richard Middleton and Anne Lombard and originally published in 1992, but it was updated in 2011.
PLACES TO VISIT: The statehouse in Annapolis, Maryland, is an incredibly beautiful building and a great example of architecture from our colonial era. It is the oldest state capitol in continuous legislative use and is the only statehouse ever used as the nation’s capitol. Seeing it and the rest of this historically significant seaside city would be well worth your time.
Until next time, may your motto be “Ducit Amor Patriae,” Love of country leads me.
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Building America’s Political House on Solid Ground: Foundations of Faith, Plymouth Rock and the Mayflower Compact
Adam Carrington, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 33: Building America’s Political House on Solid Ground: Foundations of Faith, Plymouth Rock and the Mayflower Compact – Guest Essayist: Adam Carrington, Adam Carrington, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesIn the Gospel of Matthew, Jesus says, “Everyone then who hears these words of mine and does them will be like a wise man who built his house on the rock.” He contrasts these persons with him who “hears these words of mine and does not do them.” This latter man built his house “on the sand.” When rain and storms come, the first house stands firm while the second, not only falls, “but great was the fall of it.”
Americans must ask upon what kind of foundation they built their political house. What first principles created us, define us, and thus should continue to guide us going forward? Some have posited that our rightful foundation rests on a literal rock—Plymouth Rock. By saying so, they mean that the Puritans who came to New England in 1620 defined our Founding and should prescribe our tomorrow.
These persons point to the Mayflower Compact, the charter those settlers signed as the basis for their political community. This document clearly displays the political ends which these Puritans pursued and the means they established in that pursuit. We must declare them and then assess them. We thereby must ask whether this foundation of Plymouth Rock in 1620 is in fact our own as Americans in 2022.
The Compact says that it seeks to “plant” a colony. More importantly, it states what it intends to do in establishing that political community. It first lists “the Glory of God.” It follows with the “advancement of the Christian Faith,” then the “honour of our King and Country,” and, finally, their “better ordering and preservation.” Together, these make up the ends of their political community.
We must see in the first purpose the overarching one, the final end to which all others in the Compact strive. The Puritans were defined by a faith that placed God’s glory the highest in priority and all-comprehensive in its pursuit. Thus, they must advance the Christian faith, increasing who glorified God. Their honoring king and country also assumed a religious element, since they saw King James as a Christian prince and England as a Christian nation. Their honor was a mere reflection of God’s glory. Even good ordering and preservation linked back to God’s glory, since the Compact says they will so do in “furtherance of the ends aforesaid.”
Clearly, the foundation laid on Plymouth Rock required a particular kind of religious subscription by all citizens and officers in the colony. To be a rightful citizen, one must be a rightful believer. Did Americans who wrote the Declaration of Independence and ratified the United States Constitution build on this foundation or on another?
The Founders did not deny the importance of God in general or the Christian faith in particular. The Declaration of Independence mentions God no less than four times. God authors the laws of nature. He is the Creator who “endows” human beings with equal rights. The Declaration also calls God the “Supreme Judge of the world,” to whom they make the ultimate appeal for the justice of their revolution. Finally, the document concludes by a “firm reliance on the protection of divine Providence.”
But the Founder’s God took a different approach to religious practice than did the one whose glory the Puritans pursued. The Puritans demanded as a political act of citizenship on earth uniform practice aligned with citizenship in Heaven. In other words, religious liberty as we understand they rejected as hostile to the proper ends of good government.
Our Constitution, while not contradicting the Declaration, made sure that religious liberty helped define the political implications of God. The Constitution denied all religious tests for holding national office. Its First Amendment rejected the establishment of a national church as well as protecting the free exercise of religion for all. The purpose of human life might be to glorify God. But our politics would leave wide sway for persons to come to that conclusion on their own. Our laws would let persons who so decided additional liberty to consider how exactly to glorify God. Our laws would not enforce the advancement of Christianity. But we would permit its spread and protect the right of its adherents to share, to persuade throughout the land. We must also say, then, that it protected the right of conscience for even those who rejected this view of God or the existence of God altogether.
Thus, we understand that our foundation owes some influence to Plymouth Rock. Yet we cannot call it our perfect and complete foundation. We did not follow its ends in the exact same way. Instead, the Mayflower Compact influenced the Founding even more in the additional means it posited to run its political community. To achieve their ends, they wrote they would “Covenant and Combine ourselves together in a Civil Body Politic.” They founded a political regime on the basis of consent, of the willing agreement of their citizens. No outside tyrant imposed their ends upon them. In the same way, our Constitution opens that “We, the People,” did “ordain and establish” the Constitution for the purposes written therein.
Moreover, they said this new political community would, “constitute and frame…just and equal Laws, Ordinances, Acts, Constitutions and Offices.” They committed themselves to the rule of law, not the fiat of human beings. These Puritans also declared that rightful laws should contain two qualities: justice and equality. They must pursue the good and do so equally for all. Our Founding agreed. The Constitution’s Preamble gives one of its purposes as “to establish justice.” The Declaration’s commitment to equality informs so much of the Constitution, but especially the Fourteenth Amendment’s equal protection clause, which says that no state shall deny any person the equal protection of the laws.
Thus, we see ourselves on a different foundation than that laid on Plymouth Rock. Ours did not deny God but recognized Him as one of political and religious liberty. At the same time, we took much in the means from Plymouth, especially consent of the governed and just as well as equal laws. Was this foundation on a true rock or did we build a sandy foundation doomed to a great fall? We find the answer in the experience of the last 250 years. America endured. More than endured, it thrived. It rose to become a beacon of human equality and liberty, the “last, best hope” as Abraham Lincoln once called it. Its true foundation rested on those commitments—human equality and liberty—as understood through the laws of nature and of nature’s God. Those principles still hold out the promise of provision, provision of a strong foundation against all storms, internal or external. It does; but only if we continue to build wisely and faithfully upon it.
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“City Upon a Hill” and the Mayflower Compact: Forming a Constitutional Republic Sustained Through Civic Virtue, Natural Rights and Liberty
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Tony Williams Essay 32: “City Upon a Hill” and the Mayflower Compact: Forming a Constitutional Republic Sustained Through Civic Virtue, Natural Rights and Liberty – Guest Essayist: Tony Williams, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Tony WilliamsThroughout U.S. history, Americans have appealed to the idea that the country is a “city upon a hill” and exceptional in its natural rights republican principles and constitutional government. These ideas were present at the time of the American founding as the founders had a sense of destiny and an understanding of the unique historic moment.
The concept of a “city upon a hill” originated with Massachusetts Bay Colony Governor John Winthrop’s “Model of Christian Charity” sermon aboard the Arbella. He described the purpose of establishing a godly society to work towards the common good, just government, and civic virtue. Winthrop’s thinking about a “city upon a hill” was influenced by covenant theology: “We must consider that we shall be as a city upon a hill, the eyes of all people are upon us; so that if we shall deal falsely with our God in this work we have undertaken and so cause him to withdraw his present help from us, we shall be made a story and a by-word through the world.” The same ideals about a religious and civil covenant with God and each other were present in the Pilgrims’ “Mayflower Compact.”
Pilgrim and Puritan thinking about a “city upon a hill” focused on establishing a pure church that was free of the perceived corruptions of the Anglican Church as well as creating a civil commonwealth on biblical principles. While they were very specific to colonial Massachusetts, they influenced the founders’ purpose to create a republic based upon natural rights and liberties. American exceptionalism thus enlarged to a national vision at the time of the founding.
After the Constitutional Convention, a vibrant political debate centered on the proposed Constitution and addressed larger political principles upon which the American republican regime was to be built. This deliberation took place in newspaper essays, pamphlets, state ratifying conventions, and in public spaces such as taverns. It was one of the greatest debates about human nature, political principles, and government the world has seen.
The debate revealed significant differences of political philosophy among American statesman as noted by numerous historians and political scientists. While the Federalists, who supported the new Constitution, and Anti-federalists, who opposed it, acknowledged that the Articles of Confederation had deficiencies that needed to be remedied, they differed significantly on the character of the changes that were needed.
The Federalists wanted a more energetic government than had existed under the Articles of Confederation because they believed it would promote better governance and thereby protect liberty. Of particular note, they argued for a stronger executive and independent judiciary under the principles of separation of powers and national supremacy.
On the other hand, the Anti-federalists admitted that the national government needed greater powers to regulate trade and to tax, but they were deeply concerned about a powerful executive, a corrupt Senate, and an imperial judiciary or perhaps a cabal of those branches acting tyrannically against the liberties of the people and the powers of the states.
This great deliberative moment during the American founding belies the fact that the opposing sides of the debate shared several fundamental republican tenets in common. They believed in popular sovereignty and representative government, limited government, federalism, separation of powers, the liberties of the people, and other essential constitutional principles even if they differed over the best means to achieve them in the framing of the constitutional order.
The Federalists and Anti-federalists also shared common roots in their thinking about government and human nature. They were influenced by ancient history and philosophy, Enlightenment ideas, the English tradition and colonial experience, and Protestant Christianity. Their Protestantism contributed to their thinking about resistance to tyranny, religious and civil liberty, and American exceptionalism.
The Federalist has several references to American exceptionalism. Most notably, in Federalist #1, Alexander Hamilton famously stated, “it seems to have been reserved to the people of this country to decide, by their conduct and example, the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or whether they are forever destined to depend, for their political constitutions, on accident and force.” The American opportunity to discuss those principles of government by “reflection and choice” was not merely a coincidence. Many of the founding generation thought it a sign of divine providence in their creation of a virtuous constitutional republic.
James Madison demonstrated this belief more directly in Federalist #37, when he wrote, “It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently & signally extended to our relief in the critical stages of the revolution.” Similar words were written by George Washington and others reflecting on the unlikely victory of the American Revolution and the founding.
The Anti-federalists were also pious Christians whose religious views shaped their understanding of the republican experiment in America. Brutus (widely assumed to be New Yorker Robert Yates) wrote his first essay about the danger of a large republic and struck a chord of Puritan covenant theology. Much like John Winthrop’s “City Upon a Hill,” Brutus wrote that if Americans were faithful and built a virtuous republic, they would be blessed. “[If] you will lay a lasting foundation of happiness for millions yet unborn; generations to come will rise up and call you blessed.” If they established a despotism or tyranny that destroyed liberty, they would be punished and, “posterity will execrate your memory.”
President Washington used the occasion of his First Inaugural Address to advance the republican principles of free government and free society in the new nation. He stated, “The preservation of the sacred fire of liberty, and the destiny of the Republican model of Government, are justly considered as deeply, perhaps as finally staked, on the experiment entrusted to the hands of the American people.” This assertion of American exceptionalism made the American experiment in liberty a sacred obligation not only for the destiny of America but as a model of republican government for the world.
Abraham Lincoln would echo these dutiful sentiments at Gettysburg when he said, “that this nation, under God, shall have a new birth of freedom –and that government of the people, by the people, for the people, shall not perish from the earth.”
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Consent of the Self-governed: Mayflower Compact and the City of God on Earth
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 31: Consent of the Self-governed: Mayflower Compact and the City of God on Earth – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathDuring the Middle Ages, a distinct separation of church and state existed, at least in theory. The pope in Rome and his bishops and priests throughout Western Christendom took care to protect the souls of the people. The emperors, kings, and other secular nobles protected the physical safety of their subjects. The subjects would “repay to Caesar what belongs to Caesar and to God what belongs to God.”
In fact, matters were more ambiguous, because popes frequently called on secular rulers for protection, and the latter looked to the former to confirm the legitimacy of their rule in the eyes of God and their subjects. Moreover, the ecclesiastical rulers, including the pope, also exercised sovereign political control in various territories and sat in the political councils of others. The emperors and other nobles, in turn, frequently sought to control the appointment of ecclesiastical officials within their domains and, in the case of the king of France, to control the selection of the pope himself.
With the split in Western Christendom caused by the Reformation, and the emerging concentration of power in single political rulers in national kingdoms and lesser principalities, two significant changes occurred from the medieval order. Those changes are important for understanding what led to the Mayflower Compact.
First, in the struggle over who had supreme authority in the physical world, emperors or popes, kings or bishops, the balance shifted decisively in favor of the secular rulers. A secular ruler might become the head of a religious establishment, as happened in England beginning with Henry VIII. Less drastically, the ruler might ally with the bishops to control the authority of the pope in matters temporal or secular, as happened to the Church in France. Or, under the doctrine of cuius regio, eius religio (“whose realm, their religion”), the religion practiced by the prince became that of his subjects. The last was the situation in most German states after the Peace of Augsburg in 1555 ended the initial wave of religious wars between Lutherans and Catholics.
The second change was the renunciation among a number of Protestant dissenters of the episcopal structure of the Catholic, Anglican, and Lutheran churches. Whatever might have been the dissatisfaction of Anglican and Lutheran theologians with Catholic doctrine, practices, and administration, the dissenters viewed those established Protestants as merely paler imitations of the Church of Rome. Building on the teachings of the lawyer John Calvin in Geneva, they emphasized salvation through faith alone and living in a community of the faithful governed by themselves or by some elected elders.
In Scotland, these dissenters formed the Presbyterian Church. In England, the Calvinist dissenters became the “Puritans.” They sought to purify the Church of England from various Catholic practices and doctrines while continuing to associate their congregations with the official church. Their goals seemed within reach after the English Civil Wars in the 1640s. They were well represented in the Rump Parliament and among the military leaders, such as Oliver Cromwell and John Lambert. The Anglican majority proved too immovable, however, and, after the Restoration, many Puritan leaders left England. Another group, however, believed that the Anglican Church was hopelessly corrupt, and that the only available path to personal salvation was through separation. This group has become known as the “Pilgrim Fathers,” although they referred to themselves by other names, such as “Saints.”
Both groups of English dissenters established settlements in New England not far apart. Their theological differences, however, kept them separated for decades. Not until 1690 was the Pilgrims’ Plymouth colony absorbed by the much larger Massachusetts Bay Colony.
The two groups shared certain characteristics, which contributed to the development of American constitutional theory. It is part of American mythology that Europeans came to English North America in search of religious freedom, which they joyfully and readily extended to all who joined them. The matter is much more nuanced. While such toleration might well describe the Quaker colony of Pennsylvania and the Catholic colony of Maryland, both of which were formed later, the Pilgrims and Puritans had a different goal. Theirs was to establish their respective visions of a Christian commonwealth, the City of God in the New World. Having left England for a wilderness because of despair over the allegedly corrupt nature of the Anglican Church, never mind the Catholic one, neither group was inclined now to welcome adherents of such beliefs to live among them. Religious freedom, indeed, but for individuals of like beliefs in a community gathered together for mutual assistance in living life according to those beliefs. Conformity in community, not diversity of doctrine, was the goal. God’s revealed law controlled, and governance was put in the hands of those who could be trusted to govern in accordance with that law.
The two groups also shared another characteristic, alluded to above: voluntary community. The individual alone could find salvation through studying and following the Bible. As an inherently social creature, he could, of course, join with others in a community of believers. The basis of that community would be consent, individual will, not an ecclesiastical order based on apostolic succession. Some years after arriving in the New World, the Massachusetts Bay Puritans in the Cambridge Platform of 1648 declared that “a company of professed believers ecclesiastically confederate” is a church, with or without officers. This was the origin of the Congregational Church, founded on a clear separation from all forms of hierarchical church government.
The congregation would govern itself according to the dictates of its members’ consciences and the word of God, while in the secular realm it would be governed under man’s law. What would happen, if man’s law, and the teachings of the established church, conflicted with the word of God, as the believers understood it? What if, to resolve such conflicts, that religious community left the existing secular realm? A political commonwealth of some sort is inevitable, as most political theorists claim. That is where the experience of the Puritans and the Pilgrim separatists differed.
The Puritans formed their Massachusetts Bay Colony on the same basis as the Virginia Company had been formed to settle at Jamestown two decades earlier. It was a joint stock company, somewhat analogous to a modern business corporation, formed by investors in England. The company’s charter provided a plan of government, which included meetings of a General Court composed of the freemen of the Company. The charter failed to specify where these meetings were to occur. English custom was that such shareholder meetings took place where the charter was kept. Some historians have written that the charter was surreptitiously taken from the company’s offices and spirited to the New World, thereby making Boston the site of the General Court. That is a suitably romantic story of intrigue and adventure, indeed. More prosaic is that the change in locale occurred through the Cambridge Agreement of 1629 between the Company’s majority, composed of its members seeking to establish a religious community in Massachusetts, and the minority which was interested in the possibilities of commerce and profit. The majority was permitted to take the charter and thereby secure a de facto independence from English authorities for a half-century. The minority received certain trade monopolies with the colony.
The formation of the Massachusetts Bay Colony, like the Virginia Colony’s, was based on voluntary association and contract. Once the mercantile interest of the English investors was severed, the charter provided a political constitution for the colony’s governance. But the political consequence was the by-product of a commercial enterprise. The best example of an organic constitution created by consent of a community’s members for the express purpose of self-government was the Mayflower Compact concluded almost ten years earlier.
After vigorous attempts at suppression of them by King James I for their separatist beliefs, many Pilgrims fled to the religiously more tolerant United Provinces of the Netherlands. Eventually, however, English pressure on the Dutch induced the Pilgrims to leave their temporary domicile in Leyden. Having procured a ship and picked up additional travelers in England and a license from the Virginia Company to settle on its land, a group of Pilgrims embarked on their journey westward to their future Zion.
Upon reaching the New World in late November, 1620, at what today is Provincetown, Massachusetts, they discovered to their dismay that they had arrived a few hundred miles north of the Virginia Company’s boundary. Many of the 101 passengers aboard their small ship, the Mayflower, were ill, supplies were dwindling, and bad weather loomed. The group eventually decided to land on the inhospitable coast, rather than continue to sail to their allotted land. Before they did so, however, 41 men signed the Mayflower Compact on November 21, 1620, under the new calendar. It must be noted that fewer than half of the men were Pilgrims. Many were “adventurers,” a term of art which referred to individuals sent over by the Company of Merchant Adventurers to assist the colony, tradesmen and men such as the military leader, Myles Standish. The Company had lent money to the settlers. Repayment of those loans depended on the colony’s success.
Not having the luxury of a drawn-out convention meeting under agreeable conditions, the settlers made the Mayflower Compact brief and to the point, but also rudimentary. In significant part, it declared, “Having undertaken for the glory of God, and advancement of the christian [sic] faith, and the honour of our King and country, voyage to plant the first colony in the northern parts of Virginia; [we] …combine ourselves…into a civil body politick, for furtherance of the ends aforesaid ….” Framing “just and equal laws, ordinances, acts, constitutions, and officers, … as shall be thought most meet and convenient for the general good of the colony …,” was left to another day.
The Mayflower Compact is a political application of the voluntary consent basis of religious congregation which the Pilgrims accepted. There was renewed interest in social contract theory as the ethical basis of the state, as an alternative to the medieval theory of a hierarchical political order created by God. Both approaches, it must be noted, were also used by defenders of royal absolutism in the 17th century. Bishop Robert Filmer in his Patriarcha adapted Aristotle’s connection between the family and the state as social institutions and Cicero’s correlation of monarchy and the Roman paterfamilias, to present the monarch as having whatever power he deems needed to promote the public welfare. To give his contention a more appealing, religious basis, Filmer wrote that God gave Adam absolute control over the family in Genesis, thereafter to the three sons of Noah, and finally, as the nations grew, to monarchs.
Thomas Hobbes used contract theory in his work Leviathan to justify royal absolutism. Humans seeks to escape the abysmal state of nature, where life is “solitary, poor, nasty, brutish, and short,” because a state of war exists of all against all. To gain physical and psychological peace, the desperate people enter into a covenant with a powerful ruler. In return for the ruler’s protection and a life of security, they agree to surrender whatever rights they may have had in the state of nature as the ruler deems it necessary. One exception is the right to life.
One might view the Mayflower Compact as an iteration of the Hobbesian covenant. Indeed, the early governance of the colony at times seemed like a military regime, an understandable state of affairs considering the existential danger in which the residents found themselves over the first few years. Alternatively, one might consider the arrangement as simply a settlement within the existing English state, like any town in England. After all, the Pilgrims expressly avowed themselves to be “the loyal subjects of our dread sovereign Lord, King James,” declared that their voyage, in part, was for the “honour of our King and country,” and noted that they were signing during “the reign of our sovereign Lord, King James.”
One might, however, view the Mayflower Compact as a glimpse into the future, to the work of the social contract theorist John Locke a half-century later. The Pilgrims had removed themselves from an existing commonwealth whose laws they found oppressive. Their persecution over their religious faith was a profound breach of the Lockean social contract under which government was created as a useful tool better to protect a person’s personal security and estate. One remedy for such a breach was to leave political society. For Hobbes, this would have been impossible, because it would have placed the individual back in the intolerable state of nature. For Locke, however, the state of nature of human society was not as forbidding. Locke had more of that Whig confidence in man’s goodness. Government was just a way to deal with various inefficiencies of the state of nature in promoting human flourishing, rather than a Hobbesian precondition to such flourishing.
Solitary contemplation and Bible study allowed one to recognize the glory of God and to deepen one’s Christian faith, a journey made more joyful by joining a religious congregation of believers. In similar manner, joining together in a “civil body politick” as set forth in the Mayflower Compact aided in achieving those objectives. Dealing efficiently with quotidian matters of the physical world permitted more contemplation of the spiritual. Happily also, despite all the challenges the New World presented, it had sufficient bounty to give sustenance to the saints in the new Zion, to “lead the New Testament life, yet make a living,” as the historian Samuel Eliot Morison summarized it.
The singular importance of the Mayflower Compact was in the foundation it provided for a theory of organic generation of a government legitimized by the consent of the governed. Self-government became realized through a contract among and for those to be governed. Later American constitutional theories about the people as the source of legitimacy for government had to deal with the practical difficulty of having many thousands of people in each of the already existing political arrangements called “states.” American writers sought to get around that difficulty by having state conventions rather than ordinary legislatures approve the Constitution, a logically rather precarious substitution. Still, the Mayflower Compact set a readily understood paradigm.
A more troubling lesson drawn from the New England colonies, is to recognize the unsettling connection between seeking religious freedom for oneself and prohibiting the same for others. It requires confronting the tension between community and individuality, law and liberty. The right to associate must include the right not to associate. The right to worship in association with other believers must include the right to reject non-believers. To what extent might the rights of the majority to create their “civil body politick” as an embodiment of their City of God on Earth override the rights of others in that community to seek a different religious objective, or no religious objective at all? Massachusetts Bay provided one answer. New settlers were limited to those who belonged to their approved strain of Puritanism. Dissenters were expelled. Those who failed to get the message of conformity were subject to punishment, such as four Quakers who were publicly executed in 1659 after they repeatedly entered the colony and challenged the ruling authorities. The Pilgrims at Plymouth were more accommodating to others, if grudgingly so, because their original settlers had included a substantial number unaffiliated with their iteration of Christianity.
The framers of American constitutions had to face those issues, and tried to balance these interests through concepts such as free exercise of religion, establishment of religion, and secular government. The problem is that such terms are shapeshifters which allow users to project diverse meanings onto them. These difficulties have not disappeared.
Both the organic creative aspect of the Mayflower Compact and its theocratic imperative were found in other constitutional arrangements in New England. The “Fundamental Orders” of the Connecticut River towns in 1639, a basic written constitution, set as their purpose to “enter into…confederation together, to maintain and preserve the liberty and purity of the gospel of our Lord Jesus which we now profess, as also the discipline of the Churches, which according to the truth of the said gospel is now practiced among us ….” As in Massachusetts Bay, justice was to be administered according to the laws established by the new government, “and for want thereof according to the rule of the word of God.” The Governor must “be always a member of some approved congregation.”
The colonies of Providence and Portsmouth in today’s Rhode Island, established in the 1630s, had similar founding charters as the Mayflower Compact, because they, too, were formed in the wilderness. A distinctive aspect of those colonies was that they were founded by Puritan dissenters, Roger Williams and Anne Hutchinson, respectively, who had been expelled from Massachusetts Bay. Shaped by their founders’ experiences, these colonies allowed freedom of conscience and did not establish an official religion in the manner of other New England settlements.
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King and Parliament in 17th Century England vs. a Self-governing People and President in the U.S. Constitution
Adam Carrington, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 30: King and Parliament in 17th Century England vs. a Self-governing People and President in the U.S. Constitution – Guest Essayist: Adam Carrington, Adam Carrington, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesIn the last essay, we discussed the British political system of the 17th century. That system consisted of King and Parliament, supposed to share rule but really locked in a battle for supremacy. While the division of power between them originally consisted of their number—the one king as well as few Lords and the many Commons in Parliament, the division between legislative and executive power grew up in the midst of the English Civil War.
King and Parliament did not fight this war merely for which institution would wield more power. A religious dispute arose, lighting the fires of war as well. In this religious dispute, we see much with which to compare to the American Constitution and the Republic that operates through it.
Every society holds some things in common. Short of total communism, they do not hold everything communally, but divide everything between personal ownership and the common stock. This division includes more than land or stuff. It includes principles. By what a society holds in common, they thereby define who they are and what they should do as a people.
For 17th century English society, people considered religion an essential glue holding them together. They saw God and His commands as essential to right believing and right living. They saw those commands as stretching to public actions pertaining to law and custom. Therefore, they assumed as necessary some king of religious uniformity. A common God understood by a common theology and common church helped to make England one nation. The English Reformation, with King Henry VIII declaring a national church apart from Roman Catholicism, only bolstered the link between national identity and religious conformity. There was a Church of England with dissenters often punished and forced to attend the official state religious body.
This history also bolstered the position of the king within England’s national religion. The Act of Supremacy (1534) had named Henry VIII “Supreme Head of the Church.” Since then, for theological reasons, English monarchs have taken the slightly different title of “Supreme Governor of the Church of England.” Still, the monarch stands as the head of the church.
This view has a utopianism to it. It hopes for uniformity of practice religiously to create a kingdom that conforms to God’s rules here on earth. It sees a unity in the king that helps to bring about this conformity through his or her governing of the Church of England. We see in here some remnants of the old divine right of kings. As God set him on the throne, so the king must made sure right religion reigns so long as he does reign, too.
The civil war saw armies with competing theologies, even as they fought under the banner of Crown or Parliament. The Cavaliers and the Roundheads, as they were called, fought over issues such as religious rites and how to structure church government. So violent did this conflict go that, in 1649, King Charles I was beheaded after a questionable trial by a small portion of Parliament.
America took a different track, both regarding religion and the king’s role related to it. In the United States Constitution, our First Amendment had two clauses related to religion. The first protected its free exercise, the second forbade the national government from making any law regarding establishing a religion. There would be no “Church of America” like existed across the pond. Moreover, the Constitution forbade any religious test be required to hold federal office.
Taken together, these provisions set up a baseline of religious liberty for all. State establishments and tests did continue in some places, including an established Congregational church in Massachusetts as late as 1833. However, even most states quickly adopted similar provisions in their own laws and constitutions.
This position took an anti-utopian stance. It saw religion as something that cannot hold us together because we must leave the individual conscience free to worship or not worship God as that person sees fit. No coercion should fall on the dissenters from majority belief.
This point mattered for the president. He would never be head of a church. He would never protect doctrinal purity. This point, again, connected with the lack of divine right. The people set him up to rule, not his birth. He would rule for four-year terms, not for life.
But our presidents do take some role in religious expression. George Washington’s Farewell Address warned of the need for religious belief among the people. That belief would shore up national morality among the ultimate human rulers, We the People. It would aid in public and private happiness, in the ruling of self that is a prerequisite to running a popular government.
Moreover, since Washington, most presidents have published proclamations or given speeches that thank or make requests of God. John Adams warned in 1798 that our Constitution was made for a religious people and the need to cultivate those beliefs, consistent with human liberty. Perhaps the greatest speech ever given on American soil, Abraham Lincoln’s Second Inaugural, consisted of an extended meditation on God’s will in the American Civil War and an affirmation of God’s goodness in the midst of so much hardship and bloodshed.
These appeals to religion should be seen, not as coercions to make one believe, but as encouragements, as attempts at persuasion. In that, we have come a long way from the English Civil War. Much divides us that people think we must hold in common these days. But we continue to hold the right to believe as we see fit and to act on those beliefs within reason, within not hurting others. We can thank our Constitution for that and be thankful for a president who is chief executor of the laws, not governor of an American church.
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Parliament in 17th Century England and Why America Does Not Have a King
Adam Carrington, 90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog Essay 29: Parliament in 17th Century England and Why America Does Not Have a King – Guest Essayist: Adam Carrington, Adam Carrington, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesWhen Americans speak of the Civil War, we of course have our own conflict (1861-1865) in mind. However, the term “civil war” does not name one conflict in world history. It categorizes a certain kind of conflict. Many political communities have suffered from civil wars. Such conflicts pit one portion of a country against another in armed battle.
Human beings often turn civil wars into the worst of conflicts. They do so because of why civil wars occur. People will invade other countries for money, for glory, for responding to a slight, perceived or real. Civil wars nearly always become conflicts about what a country is. Combatants spar over what principles truly define the country and who rightfully belongs as citizens within it. Our civil war centered those questions around the issue of slavery.
England had its own civil war two centuries before America’s. From 1642 to 1651, with little respite, Englishmen formed armies and killed each other in ugly, pitched battles. They did so over competing visions of England. These competing visions divided along two lines. The first was political, a battle over the English constitution regarding who should rule the country and through what kinds of institutions, especially the institutions of the king and the Parliament. The second was religious. Devoutly Christian persons on both sides, and those caught in-between, desired that England adhere in true fashion to the true God. But, as with the constitution, they did not come to the same answers. In this essay, we will examine the political differences and compare them to America’s constitutional system. In the following, we will take up the religious question of the English Civil War in relation to the American experiment.
To understand the political question of England, we must delve into the history and development of how countries organized themselves politically. In ancient and medieval times, political thinkers divided all good forms of political rule into three camps: the rule of the one (monarchy), the rule of the few (aristocracy), and the rule of the many (polity). Many of the same men extolled the good of a fourth option they referred to as the “mixed regime.” This form of government involved sharing powers among some combination of the one, the few, and the many. They intended this mixture to ensure that a country would receive the good qualities of each pure governmental form and suppress potential vices that could turn monarchy to tyranny, aristocracy to a wealth-obsessed oligarchy, or a polity into a mob-terrorizing democracy (democracy was a negative term at the time).
The English system in the 17th century had developed into one that shared power between the king and the parliament. In so doing, it incorporated the rule of all three groups. The monarch represented the rule of one, Parliament’s House of Lords the rule of the few, and Parliament’s House of Commons the rule of the people.
Such a system is impossible under our form of government. It first is so because of our principles. Kingship and aristocracy, in their pure form, begin with human inequality as the basis for ordering a political society. So, the sharing of rule comes between equals and un-equals within the country. However, our Declaration of Independence states as a “self-evident” truth that “all men are created equal.” This equality means no person can rule another without consent. No person can rule another unless the ruled can set limits on the ruler and even remove and replace him from time to time.
We legalized our commitment to equality in several places in the United States Constitution. Most notably for this issue, Article I, Sections 9 and 10 deny both the state and the national government from bestowing a “title of nobility.” The Constitution thus forbids the creation of a legal caste, a codified aristocracy who then receives special treatment by the law. Therefore, we cannot have a “House of Lords” because no lords, or dukes, or any other such legally titled persons reside among us. We cannot have a king because no hereditary right to such a position can exist for us. Our system of elections reinforced this point. Our Congress and our president both come into office by means of elections. These elections prove that “We, the People” exercise the ultimate or sovereign power through these officers, not act as subjects under their independent fiat. Our rejection of a king was of particular vehemence on this point, not wishing to elevate one man in such a way above his fellow citizens.
But the British system has evolved dramatically from this earlier setup. The English Civil War pitted Parliament against the English King, each with an army fighting for its claims. Instead of sharing power, both sought to rule outright, with the other subservient. They thus sought to make easier the exercise of the worst vices of each system. During this time, for example, we continued to see English monarchs claim their rule based in some form of divine right. God placed them on the throne and that meant something akin to absolute power in relation to parliament and English subjects.
America’s system, again, rejected these kinds of arguments. For one, we rejected the divine right of kings because of our commitment, discussed above, to human equality. Thomas Jefferson famously said that no person was born with spurs or with a saddle, the former then knowing he had a natural right to ride the latter. Human equality meant no legally born kings to subjects. Instead, the people, again, created offices to which they delegated their sovereign power to rule. That difference is why, in American history, persons often called presidents “kings” to disparage them (Andrew Jackson and Abraham Lincoln are two examples).
For another, Americans intentionally divided power among its political institutions in a way different from that which enveloped the English in the 17th century. They did not divide by who ruled, since the people ruled entirely. They divided by governmental function. They divided these functions and thus institutions into three, not England’s two: a Congress to make laws, a president to enforce them, and a judicial system to decide disputes based on the law. This separation of powers has proven far more consistent and effective over its history.
The English system, in fact, partly followed America’s route even before America existed. Parliament more and more took the lead for making laws—the legislative power. The monarch still possessed the power to veto legislation parliament passed, keeping such bills from becoming law. However, the monarch took the lead on matters we now would call executive and judicial. The king enforced the laws. He did so through ministers and other officers who arrested and restrained persons or collected taxes. The king enforced the law through his judges. Thus, England has had one court named The King’s Bench. During the commonwealth period (1649-1660), England acted as a government without a king. But they failed to truly form a government of, by, and for the people, succumbing to a de facto king in Oliver Cromwell. By 1660, England returned to a mixed regime of sharing power between Parliament and monarchy.
Over time, our president fared much better than England’s monarch. Our president only has grown in power over the centuries. He has done so as each officeholder has cultivated his role as representative of the people. As the legitimacy of rule by kings faded, though, so did the real political powers of the monarch. Vetoing legislation, for instance, is now virtually unthinkable. The British courts occupy a firmly independence existence. Parliament eventually gained total supremacy, a fate made nearly certain by the “Glorious Revolution” of 1688. Due to that dominance, the English system lacks a true separation of powers. The Prime Minister in the House of Commons occupies the real role of executive head. Meanwhile, the British king or queen now occupies a figurehead position. TV shows like “The Crown” argue for the virtues of this circumstance. They claim it allows for the monarchy to represent the country as a whole, to reside above partisanship, and to guide softly by manner, gesture, and example. But this mostly covers up a loss of political power near total in scope.
Thus, the modern British government has moved nearly all real political power, not just into Parliament, but into its House of Commons. Legislative and executive power both reside therein, with the Prime Minister doing both. Our system maintained its separation by keeping a strong executive with real powers distinguished firmly from the legislative branch. In doing so, we built a system both popular in basis and workable in execution. We maintained our independent executive power by making him not a creation of divine right but of the sovereign people. And that will continue, so long as the Constitution continues to rule the United States of America.
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Memorial Day – A Day of Remembrance Written in the Hearts of the American People
90 in 90 2022, Jay McConville, 6. Guest Constitutional Scholar Essayists, Blog Jay McConville, 13. Guest Constitutional Scholar EssayistsAmerica is the great nation that it is because we revere and honor the memory of brave souls who gave their lives to preserve it. Let the memory and sacrifices of those who have come before, for liberty purchased at such an immeasurable price for future generations, be forever written in our hearts.
“Whether we observe the occasion through public ceremony or through private prayer, Memorial Day leaves few hearts unmoved. Each of the patriots whom we remember on this day was first a beloved son or daughter, a brother or sister, or a spouse, friend, and neighbor.” (President George Herbert Walker Bush, Proclamation 6442—Prayer for Peace, Memorial Day, 1992)
Regardless of one’s faith tradition, one must acknowledge that the Bible is one of the greatest books in all human history. Many expressions we use daily come from it, and people often use biblical phrases without ever knowing it. In Jeremiah, from the Old Testament, one such memorable phrase relates to the covenant that God made with Israel. Jeremiah 31:33 (NIV) reads, in part, “I will put my law in their minds and will write them on their hearts.” This is repeated in the New Testament letter to the Hebrews (10:16, NIV), which reads, “I will put my laws in their hearts, and I will write them on their minds.”
While biblical scholars may disagree on the specific meaning of this verse, it is generally believed to indicate that the laws, in this case from God, are followed not merely out of obedience, but because we accept them as part of us at a much deeper level. Those with the laws written in their hearts live those laws as part of their very being.
I am partial to President H.W. Bush, who I quoted above, for personal reasons. He was my Commander-in-Chief during the war, that I was part of as an Army Officer, Desert Shield and Desert Storm. Like hundreds of thousands of others who served then, and millions and millions who have served in other conflicts, I had raised my hand and taken an oath to defend the United States Constitution. While military oaths differ, every military member, regardless of rank, swears “that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same…” That defense of the Constitution, for some, includes making the ultimate sacrifice.
Memorial Day is unlike any other holiday, in that it remembers those who died to write the laws of the U.S. Constitution in our hearts and on our minds. On this special day, all Americans remember those who have, as was movingly described by President Lincoln in the Gettysburg Address (1863), given the “the last full measure of devotion” so that the ideals reflected in the U.S. Constitution would endure. As Lincoln said, those who gave that last full measure, did so “that government of the people, by the people, for the people, shall not perish from the earth.”
Constituting America’s mission is to educate, empower, and inspire. We do this by teaching the relevancy of the U.S. Constitution and the principles of self-governance inherent in our founding documents. That relevancy is more than just the legal principles of the Constitution, or even the ideals detailed in our founding documents. It comes from the meaning and significance that those principles and ideals promote in how we live our lives, both as individuals and as members of the national community. Those we remember on Memorial Day made the ultimate sacrifice for those principles and ideals, and lived them to the fullest, ensuring our nation would endure. From Bunker Hill to Gettysburg, Antietam to the Ardennes, from Iwo Jima to Seoul, and Ia Drang to Mogadishu, as well as many other places and battles known and unknown, Americans have bravely sacrificed their lives to preserve the freedoms we all enjoy. The memory of each of those who died lives in the hearts of all patriots, and their sacrifice ensures that the Constitution lives there along with them.
So, on this Memorial Day, as we celebrate with friends and family, enjoy the emergence of summer, and bask in the bounty that we have been blessed with, let us rededicate ourselves to remembrance, so that those who died to make us free live forever in our hearts and on our minds. Let us also educate new generations about the sacrifices that have come before, so that what was purchased at such great price will inform how we live today, and how we persevere in days to come. Let us all dedicate ourselves, as those who died did, to the preservation of our great nation, and let us inspire all future generations to do the same.
As President Calvin Coolidge wrote on May 30, 1923, it is “to the spirit that places the devotion to freedom and truth above the devotion to life, that the nation pays its ever enduring mark of reverence and respect.”
The Constitution is more than just a legal document. It is the embodiment of what makes America the great nation that it is. Hundreds of thousands of brave souls have died to preserve it. Let their memory always be in our hearts, and let the Constitution be written there also. We must never take for granted what has been bequeathed to us by generations past. Let the Constitution be part of our being. In that way we will honor those who died to make it so.
“Let every nation know, whether it wishes us well or ill, that we shall pay any price, bear any burden, meet any hardship, support any friend, oppose any foe to assure the survival and the success of liberty.” (President John F. Kennedy, Inaugural Address, January 20, 1961)
King vs. Parliament in 17th Century England: From Absolutism to Constitutional Monarchy, Influence on American Governing
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 28: King vs. Parliament in 17th Century England: From Absolutism to Constitutional Monarchy, Influence on American Governing – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathThere have been few times as crucial to the development of English constitutional practice as the 17th century. The period began with absolute monarchs ruling by the grace of God and ended with a new model of a constitutional monarchy under law created by Parliament. That story was well known to the Americans of the founding period.
The destructive civil wars between the houses of York and Lancaster, known as the War of the Roses, ended with the seizure of the throne by Henry VII of the Welsh house of Tudor in 1485. The shifting fortunes in those wars had shattered many prominent noble families. Over the ensuing century, the Tudor monarchs, most prominently Henry VIII and Elizabeth I, consolidated royal power. Potential rivals, such as the nobility and the religious leaders, were neutralized by property seizures, executions, and dependence on the monarch’s patronage and purse for status and livelihood. Economic and social change in the direction of a modern commercial nation-state and away from a feudal society where wealth and status were based on rights in land had already begun before those wars. This change was due to financial necessities and a nascent sense of nationalism arising from the Hundred Years’ War between the English Plantagenet kings and the French house of Valois. Under the Tudors, England’s transition to a distinctly modern polity with a clear national identity was completed.
When Elizabeth died childless, the Tudor line came to an end, and the throne went to James VI Stuart of Scotland, who became James I of England, styling himself for the first time, “King of Great Britain.” On the whole, James was a capable and serious monarch but had strong views about his role as king. His pugnaciousness brought him into conflict with an increasingly assertive Parliament and its allies among the magistrates, especially his Attorney General and Chief Justice, Sir Edward Coke. The need for revenues to pay off massive debts incurred by Elizabeth’s war with Spain was the catalyst for the friction. James was well educated in classic humanities and had a moderate literary talent. He wrote poetry and various treatises. He also oversaw the production of the new English translation of the Bible. As a side note, I have found it amusing that, 400 years ago, James warned about the dangers of tobacco use.
It was James’s political writing, however, which irked Parliament. He was a skillful defender of royal prerogative and seemed to derive satisfaction from lecturing his opponents in that body about the inadequacies in their arguments. James was able to navigate relations with Parliament successfully on the whole, mostly by just refusing to call them into session. But his defense and exercise of his prerogatives, his claim to rule as monarch by the grace of God, and his pedantic and irritating manner, coupled with the restlessness of Parliament after more than a century of strong monarchs, set the stage for confrontation once James departed this mortal coil.
Parliamentary authority had accreted over the centuries through a process best described as punctuated equilibrium, to borrow from evolutionary biology. Anglo-Saxon versions of assemblies of noble advisors to the king existed before the Norman Conquest, in accordance with the customs of other Germanic peoples. William the Conqueror similarly established a council of great secular and ecclesiastical nobles of the realm, whom kings might summon if they needed advice or political support before issuing laws or assessing taxes. This rudimentary consultative role was expanded when the council of English barons gathered at Runnymede in 1215 and forced King John to agree to a Magna Carta. A significant provision of that charter required the king to obtain the consent of his royal council for any new taxes except those connected to his existing feudal prerogatives. This was a major step in developing a legislative power which future parliaments guarded jealously.
In 1295, Edward I summoned his Great Council in what the 19th-century English historian Frederic William Maitland called the Model Parliament because of the precedent it set. This Great Council included not just 49 high nobles, but also 292 representatives from the community at large, later referred to as the “Commons,” composed of knights of the shire and burgesses from the towns. Edward formalized what had been the practice off and on for several decades at that point. Another constitutional innovation was Edward’s formal call for his subjects to submit petitions to this body to redress grievances they might have. This remains a vital constitutional right of the people in England and the United States.
The division of the Great Council into two chambers occurred in 1351, with the high nobility meeting in what later came to be known as the House of Lords and the knights and burgesses meeting in the House of Commons. Within the next few decades, parliaments increasingly insisted that they controlled not just taxation, but also the other side of the power over the purse, expenditures. They faced some hurdles, however. Parliaments had no right to meet, and kings might fail to summon such a gathering for years. Also, these bodies were in no sense democratic. The Lords were a numerically small elite. Due to property restrictions, the Commons, too, represented a thin layer of land-owning gentry and wealthy merchants. The degree to which bold claims of parliamentary power succeeded depended primarily on the political skill of the monarch. Strong monarchs, such as most of the Tudors, could either decline to call parliament into session or push needed authorization through dint of their standing among powerful and respected members of those bodies. A politically adept king could secure those relationships through a judicious use of his patronage to appoint favorites to offices.
During the rule of James I, parliamentary opponents of the king increasingly expressed their displeasure through petitions to redress grievances. English parliaments also manipulated the process as a tool of political power against the king. While those petitions might in fact come directly from disgruntled constituents, they were often contrived by members of Parliament using constituents as straw men to initiate debate in a way which suggested popular opposition to the monarch on a matter. These were political theater, albeit sometimes politically effective. Even if such a petition were granted by Parliament when in session, relief would have to come through the king or his officials, an unlikely result.
After the death of James I, relations between king and Parliament deteriorated further under his son. More affable than his father, Charles I was also less politically astute. As adamant as his father had been about protection of royal prerogative, Charles made too many political missteps, such as arresting members of Parliament who opposed various policies. Much of his political trouble arose from England’s precarious financial situation, partly due to misbegotten and unpopular military campaigns precipitated by Charles’s foreign minister, the Duke of Buckingham. When Parliament proved uncooperative, he attempted to finance these ventures and various household expenses through technically legal, but constitutionally controversial, workarounds.
One constitutional theory held that taxes, especially direct taxes on wealth or persons, were not part of the king’s prerogative. Rather, such taxes were “gifts” from the people. As with other gifts, the king might ask but could not compel. The people could refuse. It was impractical to ask each person. Instead, the Commons collectively could vote to grant such a gift to the king. The king had the prerogative, however, to enforce feudal obligations, collect fees, or sell property to raise funds. When Parliament in 1626 refused to vote taxes to pay for the military expeditions, Charles instead imposed “forced loans” on various individuals. Although such loans were deemed legal by the courts, this constitutional legerdemain was exceedingly unpopular and failed to produce significant income. Worse for the king, Parliament adopted the Petition of Right in 1628, which, in part, reaffirmed Parliament’s sole power of taxation. Charles at first agreed, but soon reneged. He dismissed Parliament and reasserted his power at least to collect customs duties. The Petition would prove to be significant eventually for another reason, because it also asserted certain rights which the king could not invade.
Charles then ruled without Parliament. To pay for his expenses, he resorted to various arcane levies, fees, fines, rent assessments, and sales of monopoly licenses. Still, he ran out of funds by 1640. Needing money for a military campaign against the Scots, he called Parliament into session. The first session proved unproductive, but he summoned another Parliament, which met in various forms for most of the next twenty years and became known collectively as the Long Parliament. Friction between Charles and Parliament led to civil war, a military coup by General Oliver Cromwell and other officers of the New Model Army, the trial of Charles by a “Rump Parliament” purged of his supporters by the Puritan military, and the regicide in 1649.
Following the execution of Charles, the Rump Parliament abolished the monarchy and proclaimed England to be a “Commonwealth.” Deep political divisions remained. If anything, executing who historians consider one of the most popular English kings undermined the legitimacy of the Commonwealth with the people. Cromwell finally dismissed the Rump Parliament forcibly in 1653, after scorning them with the splendidly pungent “In the name of God, go!” speech the likes of which would not be heard today.
The Protectorate established later that year did not smooth relations between Parliament and Cromwell. In essence, this was a military dictatorship, and even the absence of royalists in the Commons and the interim abolition of the House of Lords did not prevent opposition to him. The two Protectorate Parliaments also were dissolved by Cromwell when they proved insufficiently cooperative, especially in matters of taxation, and too radically republican for Cromwell’s taste, having dared to challenge the Lord Protector’s control over the military.
Although the Protectorate’s military government was an aberration in English history, it produced some notable constitutional developments. The Instrument of Government of 1653 and the Humble Petition and Advice of 1657 collectively are the closest England has come to a formal written constitution. They created a structure of checks and balances which captured the trend of the English system from an absolutist royal rule to a limited “constitutional” monarchy. Although these two documents eventually were jettisoned by the “Cavalier Parliament” after the Restoration, they became a model for resolution of a subsequent constitutional crisis.
The Instrument provided the basic structure of government for the Protectorate. It was drafted by the radical republican Puritan General John Lambert and adopted by the Army Council of Officers in 1653. It was based on proposals which had been offered in 1647 to settle the constitutional crisis with Charles I, but which the king had rejected. The Instrument set up a division of power among the Lord Protector, a Council of State, and a Parliament that was to meet at least every three years. The last had the sole power to tax and to pass laws. The Protector had a qualified veto over the Parliament’s bills. However, he had an absolute veto over laws which he deemed contrary to the instrument itself. Moreover, Parliament could not amend the Instrument. Although these provisions put Cromwell in the position of final authority over this “constitution,” the proposition that Parliament was limited by a higher law contradicted principles of Parliamentary supremacy. It anticipated the later American conception of the relationship between a constitution and ordinary legislative bodies. The Humble Petition and Advice was adopted by Parliament in 1657. It proposed some amendments to the Instrument, among them making Cromwell “king” and creating the “Other House,” a second chamber of Parliament, composed of life-term peers. Cromwell rejected the first and accepted the second.
After Cromwell’s death in 1658, and the resignation of his son Richard as Lord Protector the following year, the Protectorate ended. This created a political vacuum and a danger of anarchy. In the end, one of Cromwell’s trusted leaders, General George Monck, led elements of the New Model Army to London to oversee the election of a new “Convention Parliament.” Though Monck had been personally loyal to both Cromwells, he was also a moderate Royalist. The new Parliament technically was not committed either to the Commonwealth or the monarchy. However, it was controlled by a Royalist majority, and popular sentiment was greatly in favor of abolishing the military government and restoring the monarchy. Monck sent a secret message to Charles II for the prince to issue a declaration of lenity and religious toleration. After Charles complied, Parliament invited him to return as king.
Although the new king also fervently believed in his divine right to rule and proceeded to undo the Protectorate’s laws and decrees through his friends in Parliament—which again included the restored House of Lords—he was savvy enough not to stir up the hornet’s nest of Stuart absolutism too vigorously. A period of relative constitutional calm ensued, although Whig exponents of radical theories of popular sovereignty and revolution could still find their works used against them as evidence of treason and plotting.
Upon Charles’s death in 1685, the crown went to his brother, James II, an enthusiastic convert to Catholicism. When he and his wife, Mary of Modena, had a son in 1688, it presented the clear possibility of a Catholic dynasty, a scenario which repelled the Anglican hierarchy. Even more objectionable were James’s exertions at blunting the Test Acts and other laws which discriminated against Catholics and Protestant dissenters from the established Anglican Church. The main tool was his dispensing power, a prerogative power to excuse conformance to a law. But, at the likely instigation of the Quaker, William Penn, he also issued his Declaration for Liberty of Conscience in 1687, a major step towards freedom of worship. The Declaration suspended penal laws which required conformity to the Anglican Church.
James’s Anglican political supporters began to distance themselves from him, and seven Protestant nobles invited the Stadholder of the United Netherlands, William of Orange, to bring an army to England. The Glorious Revolution had begun. James initially planned to fight the Dutch invasion, but lost his nerve and tried to flee to France. He was captured and placed under the guard of the Dutch. William saw no upside to having to oversee the fate of James, who was his uncle and father-in-law. To rid himself of this annoyance, he let James escape to France.
With James gone, William refused the English crown unless it was offered to him by Parliament. At the behest of a hastily gathered assembly of peers and selected commoners, William summoned a “Convention Parliament.” The throne was declared vacant due to James’s abdication. The Convention Parliament drafted and adopted the Declaration of Right. The following day, February 13, 1689, they offered the crown to William and Mary together as King and Queen, with William alone to have the regal power during his life. After accepting the crown, William dismissed the Convention Parliament and summoned it to reconvene as a traditional parliament.
The Convention Parliament was another milestone in the development of Anglo-American constitutional theory and built on the earlier Protectorate’s Instrument of Government. The process instantiated the radical idea that forming a government is different than passing legislation, in that the former is, in the later phrasing of George Washington, “an explicit and authentic act of the people.” The opponents of the Stuarts had long claimed that all power was derived originally from the people. However, parliaments had challenged the king’s supremacy with the claim that they represented the estates of nobles and commons, and that the people had vested all constitutive power in them. But, if the people were truly the ultimate source of governmental legitimacy, how could they permanently surrender that to another body? This debate was carried on among the Whig republican thinkers of the era, such as the radical Algernon Sidney and the moderate John Locke. It raised knotty and uncomfortable issues about revolution. Those very problems would occupy Americans for several decades from the 1760s on in the drive toward independence and the subsequent process of creating a government.
There was no concrete condition that William and Mary accept the Declaration, but the crown was offered on the assumption that the monarch would rule according to law. That law included the provisions of the Declaration, once the reconvened parliament passed it as the Bill of Rights in December, 1689. Until then, the Declaration had no force of law, not having been adopted by Parliament as a legislative body and not having received the Royal Assent. This has been the process of the unwritten English constitution. As with the various versions of the Magna Carta and other famous charters and proclamations, an act of Parliament is required to make even such fundamental arrangements of governance legally binding. The English Bill of Rights is, mostly, still a part of that unwritten constitution, although some provisions have been changed by subsequent enactments.
The English Bill of Rights built on the Petition of Right to Charles I in 1628 and the Habeas Corpus Act of 1679 in expressly guaranteeing certain rights. Among them were protections to petition for redress of grievances, to have arms for self-defense for Protestants, against cruel and unusual punishments or excessive bail or fines, and for trial by jury. Moreover, it protected members of Parliament from prosecution for any speech or debate made in that body. Many of these same protections appeared in American colonial charters, early American state constitutions, the petitions of state conventions ratifying the Constitution, and the American Bill of Rights. At first glance, the failure to protect religious liberty seems to be a glaring omission. However, anti-Catholic feelings ran high, and, contrary to James II, the Anglican majority was not in the mood for religious tolerance. As to Protestant Nonconformists, their religious liberty was recognized in the Toleration Act of 1689.
The Bill of Rights also made it clear that the monarch holds the crown under the laws of the realm, thereby rejecting the Tudor and Stuart claims of ruling by divine grace. This postulate was a crucial step in the evolution towards a “constitutional” monarchy. Following the approach of the Protectorate’s Instrument of Government, the Bill of Rights provided that laws must be passed by Parliament, although the monarch had an unqualified power to withhold consent. One must note, however, that this veto power has not been exercised since 1708 by Queen Anne. An attempt to do so by a British monarch today might trigger a constitutional crisis.
As a reaction against the perceived Catholic sympathies of the Stuarts and, in James II’s case, his actual Catholicism, the Bill of Rights very carefully designated the line of succession if, as happened, William and Mary died childless. That line of succession was limited to what were traditional Protestant families. To make the point clearer, the Bill of Rights defiantly debarred anyone who “is … reconciled to, or shall hold communion with, the see or church of Rome, or shall profess the popish religion, or shall marry a papist …” from the throne. The last prohibition likely was due to the habit of the Stuart kings to marry devout Catholic princesses, and an understandable concern over the influence that such a spouse might have in spiritual matters. On that point, too, the English experience affected later American developments, with the protection of religious freedom in the Bill of Rights and the prohibition of religious test oaths in the Constitution.
In addition to the importance of these historical antecedents to American constitutional development, the English Civil War and the Glorious Revolution demonstrate an uncomfortable truth. When the ordinary means of resolving fundamental matters of governance prove unavailing, those matters will be resolved by violence. Constitutional means work during times of relative normalcy, but on occasion the contentions are infused with contradictions too profound for compromise. It is an axiom of politics that politicians will seek first to protect their privileges and second to expand them. The increased demands by parliamentarians for political power inevitably clashed with the monarchs’ hereditary claims. Both sides appealed to traditional English constitutional custom for legitimacy. With their assumptions about the source of political authority utterly at odds, compromise became increasingly complex and fleeting. It was treating a gangrenous infection with a band-aid. Radical surgery became the way out. The American Revolution in the following century, and even the American Civil War of the century thereafter, showed evidence of a similar progression, with the two sides operating from fundamentally contradictory views of the nature of representative government and proper division of power between the general government and its constituent parts.
The Glorious Revolution resolved the contest over these conflicting views of legitimate authority and the proper constitutional order between king and Parliament. The earlier Commonwealth with its Protectorate was an abortive step in the same direction. It failed due to the political shortcomings of the military leaders in control. Although further adjustments would be made to the relationship between monarch and parliaments, the basic constitutional order of a limited monarchy reigning within a political structure of Parliamentary supremacy was set. The new constitutional arrangement became a model for political writers of the 18th century, such as the Baron de Montesquieu. American propagandists of the revolutionary period readily found fault with the British system. Once they turned to forming governments, however, Americans more dispassionately studied and learned from the mother country’s rocky path to a more balanced and “republican” government in the 17th century. Both sides in the debate over the Constitution regularly used the British system as a source of support for their position or to attack their opponents.
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U.S. Constitution’s Presidential Limits: The Framers’ Opposition To King Louis XIV “I Am the State” Monarchy Into Despotism
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 27: U.S. Constitution’s Presidential Limits: The Framers’ Opposition To King Louis XIV “I Am the State” Monarchy Into Despotism – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerThough the words attributed to King Louis XIV are apocryphal (they don’t appear in print attributed to him until decades after his death), they present a chilling picture of the danger of absolute monarchy to individual freedom, and it should come as no surprise that the French had a revolution, and then a series of power struggles, starting at the end of the 18th century and for almost a century after.
In the wake of our own revolution, our founders, and then those who became the architects of our constitutional republic, were rightly worried about the descent from a free people into monarchy, and the further descent from monarch, to absolute monarch, to despotism.
As historian Arthur Schlesinger, Jr., wrote, “The power to do good meant also the power to do harm, the power to serve the republic also meant the power to demean and defile it,” and in the proximate sense of the founding, they had history from which they could draw. In 1974, Professor Raoul Berger wrote, “the Framers were steeped in English history; the shades of despotic kings and conniving ministers marched before them.”
But they could also look to the reign of King Louis XIV—his consolidation of power, his undermining of the potential for opposition, and his creation of a civil service corps personally loyal to him—to see the dangers of centralized executive power.
Law professor Jonathan Turley has written extensively about this, especially with regards to our present executive branch and its largely unaccountable administrative state, saying:
What Professor Turley is saying is that without adherence to the system of checks, balances, and a diffusion of sovereign power, this lack of transparency and increased autonomy is dangerous to individual rights.
In Federalist 68, 69 and 70, Alexander Hamilton further discusses the concerns (both real and imagined) with a strong governmental executive in making the case for the Constitution’s constraints against a President’s powers. In Federalist 70, he invokes the ghosts of Imperial Rome:
While Hamilton was referencing Rome, he could also have been talking about the excesses of the court of Louis XIV in France—and also warning against the converse, the dangers of a weak president.
The key was to weigh the powers of a reasonably strong executive, and executive branch, against the checking powers of the other two branches. This was the focus of both Federalist 68 and 69, in which Hamilton details how the President, as envisioned by the proposed Constitution, differs markedly from monarchs, and monarchies, of all kinds.
It starts with the simple—in Section 1 of Article II, the President’s term is limited to four years, and with the ratification of the Twenty-second Amendment in 1951, the President was limited to two terms in office. So, unlike a king, a president’s time in power is limited.
Then, the engineering of a presidency balanced between strength and limitation gets more complicated. The President can appoint senior officials including cabinet members and Supreme Court justices, but these positions have to be confirmed by a vote of the Senate. So again, unlike a king, the President cannot merely pick individuals who are personally loyal to him—they have to be picks that will satisfy a majority of the members of the Senate as well.
The President is commander-in-chief of the United States Military. But the President cannot declare war; only Congress can. Yes, the President can engage in limited military action, if such a response is immediately necessary, but if this action is going to go more than several months, Congress must have its say. Congress also controls the budget. This is an enormous check both on the power of a President to wage war, and also on the President’s ability to engage in other policymaking.
Most importantly, unlike most monarchies absolute or otherwise, Congress has the power to remove a President from office via an impeachment for “high crimes and misdemeanors.” King Louis XIV expended a great deal of energy in working to ensure that his aristocracy could not undermine his regal powers and to make sure that France did not descend into civil war.
In America, the power of impeachment works to ensure that a President doesn’t abuse his office—either by abusing the rights of American citizens or by using his office for his personal enrichment.
The founders were deeply troubled by centralized power, especially the idea that an absolute monarch could become a tyrannical despot. While ensuring that a President could do his job, they created a constitutional system that checked the strong powers of the executive branch.
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The Federalists on Diffusion of Power in American Government to Thwart Absolute Monarchy as Held by King Louis XIV
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 26: The Federalists on Diffusion of Power in American Government to Thwart Absolute Monarchy as Held by King Louis XIV – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerIn 1992, U.S. Supreme Court Justice, Sandra Day O’Connor, succinctly and eloquently summed up the essence of our federalist form of government:
“federalism secures to citizens the liberties that derive from the diffusion of sovereign power.” New York v. United States, 505 U. S. 144, 181 (1992)
Power is diffused among branches and levels of government, so that no one branch can become any more powerful than any other—and the architects of our government were purposeful in this construction.
They did so because they were inherently distrustful of overly centralized power, because they knew that power could be abused, especially the power of an executive, probably the greatest threat to individual liberty. Both Federalist 69 and Federalist 70 focus on the dangers of concentrated or overly powerful chief executives, and how that power ought to be reined in, and while Federalist 69 spends a tremendous amount of time focusing on the English monarchy (and Federalist 70 looks at Ancient Rome), the Federalist’s authors (Madison, Hamilton, and Jay) were well-aware of the recent history of France’s Bourbon monarchs, especially King Louis XIV, the self-proclaimed “Sun King.”
Louis XIV had been coronated when he was only 4, and while contemporaneous observations noted only a casual interest in ruling while he was a boy, when he assumed true personal rule of France in 1661 (following the death of Cardinal Mazarin, the king’s Chief Minister), he worked to ensure that his regal power was both consolidated and secure—building on the tutelage of his mother, Queen Anne, and having witnessed the chaos of a series of French civil wars (The Fronde) as a boy.
These civil wars were of deep concern to him—from both a standpoint of his personal safety and from the standpoint of ensuring his power. Louis, in turn, began to enact a series of reforms to strengthen his role as an “absolute monarch.” While there was a legislature, and there were ministers, Louis served to create a royal civil service corps that were loyal to the crown itself, while at the same time making requirements of both the titled and military aristocracy that served to weaken their power over time.
By making the privileges of aristocracy dependent upon presence and participation at court, the king took both the political and military aristocrats away from their estates—placing them under direct scrutiny of the king and those closest to him, while frustrating any efforts that could undermine Louis’ hold on power (or present a military threat to him).
While it is apocryphal, given the concentration of power by the monarch, the king is reported to have said, “I am the state!”
It is interesting to note that all three of the Federalist’s authors viewed this concentration of power with deep skepticism, but for widely different reasons.
James Madison, one of Thomas Jefferson’s closest friends, shared Jefferson’s affinity for the French generally, but of the three authors of the Federalist essays was probably the most-skeptical of concentrated power from a political perspective, and would have seen the concentration of power as not just a threat to individual rights but also as politically unsound in the long term, something that was proven right decades after Louis XIV’s rule, when the French people revolted.
In contrast, Alexander Hamilton, the author of Federalists 69 and 70, believed in greater concentration of power in the federal government, as well as greater concentration of power in the executive branch. That being said, Hamilton was no fan of the French, and ultimately tried to start a war with the French, despite their assistance to America during the Revolution.
But it was John Jay whose antipathy toward the French monarchy was deeply personal—and who certainly had no love for King Louis XIV.
Jay was raised as a Huguenot, a French protestant sect. The Huguenots were persecuted for a very long time by the French government, until the 1598 Edict of Nantes granted them extensive religious freedom.
But in October 1685, King Louis XIV issued the Edict of Fontainebleu, which revoked the freedoms granted nearly a century earlier (Louis may have done this to placate the Catholic Church, whose political power he had also been trying to diffuse). Persecution of the Huguenots began anew, and John Jay’s great-grandfather sent his wife and children to England to avoid being targeted. As a result, Jay’s great-grandfather had his property confiscated, and he eventually joined his family in England.
When Jay was born in America, he was raised in Rye, New York, and educated in a French Huguenot church school in the next town, New Rochelle named for La Rochelle, a Huguenot center in France.
There is no doubt that his family’s experience colored his own views of the relationship between a central government and the rights of citizens, especially when it came to the freedom to worship and the right to enjoy private property. Interestingly enough, Hamilton, too, had at least one Huguenot ancestor, a grandfather, and this may have contributed toward his antipathy toward the French as well.
To be certain, whether based upon familial experience or an overall approach to political philosophy (and most likely a combination of the two), the authors of the Federalist saw that the political machinations and concentration of absolute monarchic power during the reign of King Louis XIV as something to not just avoid, but to actively work against.
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“Sun King,” Louis XIV, and an American Constitution That Originated From the People as Sovereign
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 25: “Sun King,” Louis XIV, and an American Constitution That Originated From the People as Sovereign – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathTwo noted maxims of Roman constitutional law contained in the code of Justinian’s 6th century Corpus Juris were, “What pleases the prince is law,” and, “The prince is not bound by the law.” These are classic expressions of sovereignty. They locate the ultimate power and authority to make and enforce law in one identifiable person. They reflect the full imperium of the Roman emperor and create a contrast with the earlier Roman republic, when a similarly complete dominance was exercised only outside the city, by proconsuls in the provinces.
Yet there was another maxim in the Corpus, “What touches all must be consented to by all.” This suggests that the ultimate authority rests not in the governor, but in the governed. In the Roman republic, actions were taken in the name of the Senate and People of Rome. That idea was symbolized by the SPQR (Senatus Populusque Romanus) which was prominently displayed even on the standards of the imperial Roman legions. There is an obvious tension between these maxims. One might locate in that tension the beginning in Western political thought of the lengthy and ongoing debate over the nature of sovereignty.
One of the most influential expositors of the concept was the 16th century French jurist Jean Bodin. In his Six Livres de la République (Six Books of the Commonwealth), published in 1576, Bodin defines sovereignty as the power to make law. Political society, like other human organizations, is hierarchical. Someone must make the rules. Thus, sovereignty must exist as a precondition for a state. Sovereignty, Bodin insists, must be indivisible. And it must be ultimate and absolute. While his preferred sovereign is a monarch, that is not requisite. As a student of the classics, he asserts that all political constitutions are monarchic, aristocratic, or democratic. As a man of the Renaissance, he believes in scientific epistemology. But, before one can effectively study a country’s laws, one must know the source of those laws, which is in one identifiable man or body of men.
The appeal of such a theory to a strong ruler is clear, and there were few rulers of the early modern period as absolute in power and self-assured of his sovereignty as Louis XIV of France. The “Sun King” ruled from 1643 to 1715, said to be the longest recorded of any monarch in history, although during his minority France was governed under the regency of his mother, Queen Anne. He took over sole rule in 1661, after the death of his chief minister, the political and diplomatic virtuoso Cardinal Mazarin who had been the de facto ruler of France for a couple of decades. Louis’s famous dictum, “L’état, c’est moi” (“I am the State”), may well be apocryphal, but it summarizes his view of government.
Louis certainly was not alone in that regard. The Early Modern Period saw the rise of the nation-state and, as an essential component, the absolute monarch ruling by divine right. By the reasoning of various defenders of the new order, an absolute monarch as sovereign was as natural as the rule by the paterfamilias over the family and the rule of the pope over the community of believers. While Martin Luther and other early Protestant leaders might challenge the second analogy, they had no problem with the bigger point. On its way out was the old divided feudal structure, based on personal covenants of fealty, with power divided between popes and emperors, emperors and nobles, and nobles and freeholders. The conflict between King John and the nobles at Runnymede, which culminated in the Magna Carta of 1215, was an anachronism. More representative of the new order of things was King Henry VIII’s campaign of arrest and execution of English noblemen and seizure of noble estates. In similar manner, the walk by Emperor Henry IV over the wintry Alps in 1077 to Canossa to beg forgiveness from Pope Gregory VII and have his excommunication lifted, would be seen as rather odd. Instead, there was that same King Henry VIII first making himself head of the Catholic Church in England and, soon thereafter, head of the new Church of England.
Historians have speculated about the many possible causes of the rise of the modern nation-state. It is difficult to pinpoint any one cause, or even to distinguish between causes and symptoms. Was it the increased sophistication of weaponry and the changed structure of military operations, which eroded the relative equality of power among various nobles because of the greater expense of the new technologies and the larger armies drawn from commoners? Was it the growing influence of commerce due initially to the greater affluence and stability of society in the 12th and 13th centuries and then, ironically, to the economic recovery in the 15th century after the prior century’s population collapse from pestilence and famine due to the colder climate of the Little Ice Age? Was it the result of the decimation of the nobility due to the many wars among nobles, such as that between the House of York and the House of Lancaster in the English War of the Roses in the 15th century? Was it the European expansion and exploration in the Age of Discovery, enabled by European technological superiority, the expense of which could only be undertaken by comparatively large states and which, in turn, brought great wealth to their rulers? Was it simply, as Niccolo Machiavelli might declare, due to Fortuna and the virtu of dynamic statesmen with which a particular political entity was favored?
Whatever the reason, every ruler, it seemed, wanted to be what Louis XIV became. Timing was not uniform. England under the Tudors became the domain of an absolute monarch a few generations before France did, but also lost that status well before France did. The German princes operated on a smaller scale and were well behind France in their pretensions to absolute rule; indeed, the Holy Roman Empire never coalesced into a nation-state. But the common thread for these rulers, other than in various city states and in a few oddities such as the Holy Roman Empire, the Swiss Confederacy, and the United Provinces of the Netherlands, was that they claimed to exercise full sovereignty in fact.
The existence of the aforementioned oddities presented a problem for theorists such as Bodin. The confederated natures of such realms and their distributions of power among various political organs vexed him. His solution was simple. He either just assigned such divided governments to a pure system or declared them not to be true states. Thus, he characterized the intricate constitution of the Roman Republic as a democracy. The Holy Roman Empire, with its imperium in imperio, that is, a purported dual sovereignty, was not really a state, but a chimera of one.
Along with Bodin, another influential author of the doctrine of sovereignty was the 17th-century English philosopher Thomas Hobbes, whose major work on the topic was Leviathan. As Bodin had done, Hobbes declares sovereignty to be indivisible and absolute. But Hobbes goes further. His approach is more pragmatic and more rigorous than Bodin’s. Hobbes analyzes sovereignty less in terms of authority to make law, but rather in the ruler’s power to coerce others. That is the essence of the old Roman imperium, to command. For Hobbes, the sovereign’s legitimacy arises from the consent of the governed rooted in the social contract. That contract results from the human psychological need for peace. Mankind’s desire for survival impels humans to escape the brutal Hobbesian state of nature with its war of all against all. Human nature is both rational and self-interested. Hence, humans seek the safety of the political commonwealth and the strength of its organized coercive power.
Hobbes’s view of the relationship between subject and ruler is best described as covenantal, and his reference to an Old Testament creature is not coincidental. There is no equality of bargaining and equality of relationship as in a typical contract. The subject agrees to obey unconditionally, and the ruler provides protection and peace. To do that, the ruler must have unquestioned power to bend all persons and all institutions to his rule. The sovereign can act in accordance with established law or contrary to it. Church-state divisions are no longer an issue. The secular sovereign controls the ecclesiastical bodies, as Henry VIII controlled the church. It need hardly be added that a divided state or a system of distributed powers would be an abomination for Hobbes, as it would undermine the commonwealth’s stability and raise the likelihood of a return to the state of nature.
The Bodinian and Hobbesian approbation of undivided sovereignty in an absolute ruler sits rather ill at ease with certain assumptions about the American system. The drafters of the United States Constitution deliberately sought to create a system of balanced powers divided between the general government and the states and among several branches of the general government. The supporters of the Constitution frequently discussed the division between the general government and the states in terms of sovereignty, particularly the residual sovereignty of the states, in their efforts to assuage the concerns and blunt the criticisms of their opponents during the ratification debates. James Madison and others even argued that the Constitution was in many ways just a novel and workable modification of the confederal structure of the Articles of Confederation.
The Anti-federalists were not persuaded and, like Bodin and Hobbes, insisted that sovereignty was indivisible and that, within a union, imperium in imperio was impossible. Either the states were the sovereigns, as under the Articles of Confederation, or the general government was. While the framers may have attempted to “split the atom of sovereignty,” in the vivid words of Justice Anthony Kennedy, the effort was bound to fail. Either the states would control the general government or the latter would control the former. For the Anti-federalists, the teleological direction of the Constitution was clear: The general government would inevitably diminish the states to mere administrative appendages and become a tyranny.
This controversy over the nature of sovereignty in the Constitution has continued. Is there, indeed, an identifiable sovereign at all under the Constitution, with the split in authority among the legislative, executive, and judicial branches, as well as between the House of Representatives and the Senate? This does not even consider the role of what is, in the evaluation of some, the true sovereign: the wholly extraconstitutional vast bureaucracy with its essentially unreviewable combined rule-making and rule-enforcing power.
That question also leads to another controversy. To counteract the criticism that the Constitution was a path to oligarchic rule at best, and outright dictatorship at worst, the Constitution’s supporters made frequent references to the power of the people to participate in various political processes. In similar manner, there arose the claim that, in the United States, unlike even in Britain, “the people are sovereign.” In 1776, George Mason asserted in the Virginia Declaration of Rights, “That all power is vested in, and consequently derived from, the People; …” Although he also expressed caution about this principle, James Madison in Number 49 of The Federalist accepted Thomas Jefferson’s dictum that, “the people are the only legitimate fountain of power,” and acknowledged that, at least, in certain unexplained extraordinary matters, the people should decide directly.
But how do “the people” exercise indivisible and ultimate authority and power? Leave aside various inconvenient facts, such as the usual exclusion of large groups of “the people” from the political system, the often low fraction of eligible voters who actually participate, the ability of unelected bureaucracies or courts to frustrate the political decisions reached, and the dubious premise that “the people” have acted when the vote is, say, 51% in favor and 49% opposed. As the experience of ancient Athens and Rome shows, it is not possible for “the people” to gather in one place. As an interesting side note, modern technology makes such an event less implausible, but even with the capacities of a premium Zoom version, it might be difficult to get a couple of hundred million of “the people” to participate in policy-making. It is a far cry from an 18th-century New England town meeting, and even there, a majority assumes a power over a minority.
Moreover, aside from the Constitution’s optimistic reference to “We, the people of the United States,” every part of that document is about entities other than the people making laws and coercing individuals to obey those laws. Indeed, “the people” did not adopt the Constitution. Nor can they amend it. Technically, there is not even a guaranteed right in the document for “the people” to vote, as the states control the qualifications for voting in the first instance. True, here or there across the American constitutional landscape, one might spot an exemplar of popular sovereignty. Some states provide for direct participation by voting on ballot initiatives and referenda to make law, and there remain in some localities the afore-mentioned town meetings. One might even point to jury nullification as another example. But all of these are well outside the norm.
This dissonance between declarations of popular sovereignty and the reality of governments nevertheless has led some writers to try to reconcile them. Jean-Jacques Rousseau asserted that the people cannot act individually to legislate. Instead, their particular interests are collectivized and transformed rather mystically into the community’s “general will.” For Rousseau, the community is an actual, albeit incorporeal, entity with a will. That general will is expressed in laws through some legislative body. This seems to be a well-perfumed version of the Roman empire’s old constitutional sleight of hand that the people are the ultimate source of political authority but have ceded their sovereignty to the emperor.
Rather than resolve these tensions, one might distinguish between “theoretical sovereignty” and “practical sovereignty.” In a system whose claimed legitimacy is based on consent of the governed and which purports to base the legitimacy of its actions on some degree of popular participation, one might indeed posit a theoretical grounding on “the people” as the unlimited sovereign. The then-future Supreme Court justice James Wilson, a prominent lawyer and intellectual who signed the Declaration of Independence and the Constitution, wrote in his law lectures that a constitution originates from the authority of the people. “In their hands, it is as clay in the hands of the potter: they have the right to mould, to preserve, to improve, to refine, and to finish it as they please.” But that is not how government operates in practice. It is certainly not how the Constitution was adopted and how it has actually been amended.
Just as the high-minded assertion in the Declaration of Independence that “All men are created equal” states a Christian view of us all as God’s children or perhaps a still-aspirational secular equality before the law, “popular sovereignty” or “consent of the people” is a useful philosophic device to communicate the difference between a government and a bandit. It establishes a conceptual basis, perhaps a noble lie, for political obligation, that is, why one is obligated to obey the commands and coercions of the former, but not the latter.
The more difficult and practically relevant investigation is where in our constitutional system does the practical sovereignty lie. Who really governs, makes the rules, and coerces obedience? There indeed is no clear Bodinian sovereign in the Constitution’s formal dispersal of power. Despite Alexander Hamilton’s expansive views of executive power in The Federalist and his subsequent Pacificus letters, the President’s constitutional powers fall well short of a monarch’s, as Hamilton wrote, as well. Even Louis XIV, despite his pretensions, found out that his word was not everyone’s command. He did ultimately acknowledge on his deathbed, “I depart, but the State shall always remain.”
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Machiavelli, Science of Politics, and the Founders’ Solution to Prevent Government Fortifying Against the American People
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 22: Machiavelli, Science of Politics, and the Founders’ Solution to Prevent Government Fortifying Against the American People – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathAmong the common definitions one finds for “Machiavellian” are “unscrupulous,” “cunning,” “deceitful,” and “duplicitous,” words associated with disreputable character. The namesake for these malignant traits is Niccolo Machiavelli, a Florentine diplomat who lived from 1469 to 1527. He was a scion of an ancient Florentine family. His father, a lawyer, provided him with a classic education. That learning shows in Machiavelli’s various books about political science, warcraft, and history. In addition, Machiavelli wrote numerous letters and shorter essays and a satirical play, Mandragola, which was immensely popular at the time. Whether or not he intended it as such, this play has been described as an allegory about political events in 16th century Italy, a bawdy dramatization of the advice Machiavelli gave to the Medici family in his notorious work, The Prince (De Principatibus or Il Principe).
Machiavelli and his family were firmly associated with the republican factions in Florence. Through that connection, he held diplomatic offices in service to his city, traveling extensively to political centers and royal courts in Italy and the rest of Europe. In this capacity, he met a number of rulers, including the charismatic Cesare Borgia, after which the protagonist in The Prince is supposedly styled. With the return to power of the anti-republican faction of the Medicis in 1512, Machiavelli’s political fortune cratered. The following year, he was accused of plotting against the regime, arrested, imprisoned, and tortured.
It has long been claimed that he wrote The Prince while in prison as a testimony that he was loyal to the regime and, indeed, should be permitted to serve in the new government. The fawning dedication to Lorenzo de Medici, Duke of Urbino, that Machiavelli wrote in the preface of the book lends credence to that claim. Whether or not Lorenzo or any other member of the family ever read the book, Machiavelli’s hope for a further diplomatic career remained unfulfilled. He retired to a life of contemplation and writing.
Around 1517, he wrote his other famous work on politics, The Discourses on the First Ten Books of Titus Livy, wherein he examined the politics of the early Roman Republic. From Rome he sought to learn the necessary conditions for a successful republic, an aspiration for his own city’s future. Although there are common threads, such as the judicious use of violence when needed to maintain the government, The Prince is different in tone and goal than The Discourses. This has led to much speculation about Machiavelli. Was he the amoral cynic who scorned Christian ethics, which the former book displays? Or was he the admirer of republican Rome, who emphasized the need for constant “rebirth” to maintain that best of all systems? In the latter work, he is alarmed that corruption of republican character will destroy the republic, unless something spurs its rebirth, preferably from reforms within the republic itself. John Adams, writing a quarter-millennium later in A Defence of the Constitutions of Government of the United States of America, agreed. But that is not The Prince.
In short, one must look at The Prince on its own terms. Readers then and since have been shocked—or piously professed to be shocked—by its content and tone. But why? The book makes no claim to promote virtue, either in the classic or Christian sense. He does not disparage Christianity or challenge Christian virtue in this or any other of his works. As one commentator has noted, “What should not be assumed is that whatever Machiavelli thinks about things in general is necessarily ‘Machiavellian.’ His view of politics is, but it simply does not follow that his view of everything is ‘Machiavellian.’” The Prince purports to deal with the world as it is, not as philosophy or religion would like it to be. It followed a long literary tradition called “the mirror of princes,” books whose lessons instructed future rulers about “proper” governance. It should come as no surprise that such instructions during the Middle Ages came with a heavy dose of Christian ethics to civilize the prince and habituate him to just and temperate rule. After all, as Thomas Aquinas noted, God gave the ruler care of the community for the general welfare, not a license to exploit the people for the ruler’s own benefit.
Machiavelli builds on that literary tradition but uproots it from its philosophical grounding. He tosses aside the Aristotelian conjoining of ethics and politics, the classic assumption that what defines a good person also defines a good ruler, where the private virtue is elevated to the public. It is an abandonment of the scholasticism of the High Middle Ages and its synthesis of philosophy and religion, of which Thomas was a prominent expounder. The Prince warns the ruler that, to be successful in politics, assume the worst of everyone, whereas the classical version of politics as ethics writ large held that a few people are virtuous, more are evil, and the great majority are in-between. It was for the last group that habituation to ethical behavior might move the needle.
Machiavelli is not interested in saving the prince’s soul, but in having him survive, a matter of particularly acute relevance in the chaotic and often murderous factional politics of the Italian states. He does not hold up his examples as paragons of morality, and his praise of virtu means a prince’s skill at the craft of statesmanship, not the ideal character of a Christian nobleman or the pursuit of personal excellence by a Roman Stoic sage. His advice is specific and based on assumptions about how human beings consistently respond to certain events and actions. These assumptions are drawn from hard-nosed examination of human behavior and contemporary events. Machiavelli engages in empirical psychology, no less valid because his analysis often also draws from historical sources made familiar through his classical education. Like the image of Janus, the Roman two-faced god of transitions, Machiavelli and his contemporaries looked ahead to a more secular world revealed through humanistic tools of discovery but still could not avert their gaze from the medieval world receding behind them.
The Prince is divided into several sections and chapters, dealing with the particular conditions of various principalities. There are secular and ecclesiastical princes.. Among the secular are those who became rulers by conquest, by criminal acts, or by acclaim of the people. Just as all cars might have certain similar requirements for maintenance, yet need different manuals to address their particular components, so does the governance of people in different polities.
Starting with commonalities, there are certain common sense postulates derived from experience. It is better to be feared than loved by the people. He acknowledges that it is best to be both respected and loved by the people. A ruler who is loved is likely to return that love and act magnanimously and govern moderately. But love is unsteady. In human relations, lovers betray each other constantly, through deceit or worse. That behavior is the theme of much literature, dramatic as well as comedic, including Machiavelli’s own Mandragola. At the impersonal level of a state, love becomes even less stable, which Machiavelli’s own fate in a city riven with factionalism demonstrated all too well. No politician is loved by everyone and should not even try. Sic transit gloria mundi should be a warning for every politician, as the glory of today becomes the exile, or worse, of tomorrow. Fear, on the other hand, provides a more stable rule, because it always produces the same reaction from people, of obedience and, indeed, respect for the ruler’s decisive leadership.
True, some might feel so much hatred for a strict ruler that it overcomes their fear. Therefore, the ruler must apply the precautionary principle: treat everyone as a potential assassin, more practical advice to survive in 16th century Italian politics. From this, another general rule emerges. Feign affability, but never let down your guard by mistaking your disguise for reality.
Of particular relevance to the Medicis would be the advice for rulers of conquered lands. Upon victory, the new ruler might react in an understandable human way and be indiscriminately magnanimous to the conquered people. Big mistake. The ruler must put himself in the position of various groups among those people. First, there is the former ruler and his family, around whom those with loyalty to the prior regime might coalesce. To the extent possible, the prior ruler’s family must be exterminated to eliminate this mortal danger to the new prince.
Another group might be those who have invited the prince to invade as a result of factional strife within that domain. This group expects to be rewarded. It is safe to ignore them, as they have no one to support them against the new prince. Their own people consider them traitors, and their very existence depends on the prince’s success. He holds their reins, not they his.
A third group are the sizable portion of the people who have something to lose in wealth or position, but are not among the first two groups. They might be, for example, merchants, artisans, and bureaucrats. The advice: be generous to make them feel connected to him. Kill those with loyalties to the old regime, fine. But get it done quickly, and do it through a subordinate who can then be blamed for having been overly zealous. One might think of King Henry II of England and his cry to the nobles, “Will no one rid me of this meddlesome priest” about killing Thomas Becket, the 12th century Archbishop of Canterbury. Better yet, kill the executioner, for there is no better way of showing that executions are over than hanging the hangman. The conquered people are afraid and cowed, uncertain of what will become of them, their families, and their property. They look for any sign of humanity in the conqueror and want to believe in the ruler’s good will. Such an approach will reassure them that they are safe and will be seen by them as one of generosity. After all, the condemned man is thankful for a pardon, even though it may have been the ruler whose prosecution put the man in the position of needing one. The reader might find it difficult to avoid the sense that this part may have been about Machiavelli and his own family’s situation while he wrote The Prince.
People, by nature, lack gratitude. Over time, the effect of not having been killed or lost their property wears off. Now the prince should reward them, but do so gradually and without raising taxes. The people may see through this, but will respect the prince for his fiscal discipline which has benefited them financially. One other noteworthy point that Machiavelli makes is that this third group of people might accept their conqueror because they blame the prior ruler for their situation. They will believe that the prior ruler lost because of corruption of his moral or political bearings, with the latter due either to the ruler’s laziness in attending public affairs or to a rot of the political structure as a whole. In any case, the prior ruler proved unfit, which makes the new one worthy of respect and fealty.
The last group is the remainder of the population. One option is to rule with perpetual fear and to strangle their livelihoods with taxes to keep them struggling for survival rather than engaging in political scheming. But, sooner or later, the prince will need them as soldiers. It will not do to impoverish the people because, with nothing for them to lose, it will make them unable and unwilling to fight on his behalf.
This broaches the topic of war, one of Machiavelli’s favorites, not coincidentally also a frequent pursuit of the rulers of Italian states during his time. War, he declares, is ubiquitous and inevitable among states. The prince should embrace it, but be smart about how and when to fight. War must deliver benefits for his people, such as tribute or new lands. Internal politics are inevitably connected to foreign policy, an interrelation which a diplomat such as Machiavelli would be sure to emphasize. War also can be a useful distraction from domestic trouble by rallying the people to the prince.
The “how” of fighting the war is of particular significance and requires long-term choices. One might use one’s own forces, those of allies, or mercenaries. While some combination among them, particularly the first two, is possible, he addresses the benefits and drawbacks of each. If one relies on allies, one takes a risk. They may help you and fight with elan. However, they may want a division of the conquered territory. If you refuse, they may turn on you. Therefore, be hesitant about allying with more powerful entities, but at least make sure that there is not one predominant ally among the group.
Mercenaries are always a problem, during war or peace. Perhaps he based this on the experience Italian states had with their frequent use of mercenaries, particularly German and Swiss. He broadened the argument to include professional soldiers in general. They fight for money and often are on retainer during peacetime. Therefore, they want to avoid war and will counsel against or even frustrate the ruler’s political decision about war. If war happens, they feel a certain fraternity with those on the other side. They may know them and even may have fought alongside them in other wars. Mercenaries do not fight vigorously, because the soldier on the other side is “just doing a job,” just as they are. The mercenaries lack the necessary conviction for the cause, because, in the words of one commentator, they “no more hate those they fight than they love those whom they fight for.” Even if they win, they could turn on the prince. At the least, they might raise their fee, a demand it would behoove the prince not to ignore lest the mercenaries act against his interest.
Best, then, to rely on one’s own citizen militia. If there are military reverses, the citizens will fight most vigorously for their hearth and home. If they are victorious, they can be rewarded with a moderate degree of plunder. They might also be useful to colonize the new realm. However, this migration must be undertaken with the long view towards intertwining the conquerors with the original inhabitants. It must not produce a collection of isolated communities of occupiers. Assimilation works best if the conquerors and the conquered share language, religion, and customs. Otherwise, particular care must be taken to be sensitive to deeply-held customs of the conquered people to pacify them. This reflects a practical strategy employed successfully by the ancient Romans as they spread across alien lands.
Machiavelli’s commendation of citizen militias and his distrust of professional soldiers reflects his republican leanings. Such broad-based military service was at the heart of the classic Greek and Roman conception of citizenship. His views became a staple of classic republican argumentation. During the debates over the American Constitution in 1787 and 1788, the Anti-federalists vigorously objected to a standing army as a tool of tyranny that would doom the republic. Hamilton and Madison used several essays in an attempt to blunt those objections.
Another aspect of Machiavelli’s instruction was that the ruler must consider the role of luck in events, particularly in war. He uses Fortuna, the Roman goddess of luck and fate. She is capricious, moody, and willful. She must constantly be courted to keep her on one’s good side. Her capriciousness cannot be tamed, but fortunately, if one may use that word, it may be calmed by the ruler’s virtu. Machiavelli is a Christian, so he does not believe in unalterable fate; man has free will. Moreover, the history of warfare shows not only the influence of luck, but of skill at warcraft, such as when a commander executes a deft maneuver that allows his army to escape a precarious situation. Hence it behooves a ruler to act decisively. Fortuna and virtu, working together, are irresistible.
Unlike the legitimacy a prince has by succession under established constitutional rules, conquest by itself cannot bestow legitimacy on the new prince. Machiavelli’s prince is not Thomas Hobbes’s Leviathan. Machiavelli calls to mind Aristotle’s distinction between king and tyrant. The non-pejorative meaning of “tyrant” was someone who came to power outside the customary process. That said, a consistently “lucky” prince will be seen by the people as beyond ordinary men, which creates legitimacy in their eyes. It is a well-known psychological urge in people to “go with a winner.” One need note only the increased attendance at sporting events in our time when the team is on a winning streak that season. As in the case of the ancient Greek heroes favored by their deities, Fortuna smiles on the prince. The concrete evidence of the prince’s success bestows the legitimacy on him which medieval Christians believed occurred through God’s anointment of kings and emperors. A lot of this may be theater, where elaborate court pomp and ritual provides the stage to make it appear that the prince is powerful and favored by fortune. The medium becomes the message, as the phrasing goes. As in Plato’s parable of the cave, the appearance becomes the reality in the minds of the subjects, a metamorphosis to which citizens of modern republics certainly are not immune, either.
The requirement that a successful prince take account of Fortuna’s fickleness and need for constant attention and courting sounds very much like Plato’s and Polybius’s critiques of the “pure” forms of democracy. For them, the general citizenry was fickle and willful and craved constant flattery from would-be leaders. The extent to which the latter possessed the political virtu to manipulate the citizens would determine how much support such demagogues would get. One also is reminded of Hamilton’s concern in Number 68 of The Federalist that direct election of executives is undesirable, because it rewards men who offer nothing more than their “[t]alents for low intrigue, and the little arts of popularity.”
The Prince has often been compared—unfavorably—to the works of political theorists who followed Machiavelli within a few generations, preeminently Jean Bodin and Thomas Hobbes. The latter, critics have charged, produced much more sophisticated and internally consistent investigations of political systems. Bodin, a French academic and jurist who wrote in the 16th century, analyzed different forms of government and organized them around the concept of sovereignty. Hobbes, an Englishman writing a hundred years later, claimed his work to be a new science of politics. He provided a modern psychological basis for the origin of political society in the rational self-interest of mankind, foremost the desire for personal security and safety. Meeting that primal psychological need established for Hobbes the legitimacy of an absolute ruler such as his Leviathan.
These criticisms miss the purpose of writing The Prince. Like Bodin, Machiavelli favored centralized and effective power through his prince. He hoped for a strong leader to unify Italy, much as Bodin wrote in favor of the French monarchy which had mostly completed the unification of France. Like Hobbes, Machiavelli in The Prince rejects established ethical justifications for a ruler’s legitimacy and justifies a strong and energetic ruler based on that ruler’s success in governing. As was essentially the case for Hobbes, there is no universal moral order of natural law which actually limits the prince’s law-making. To borrow from Justinian’s Code, the prince is the law because there is no earthly sovereign above him. This had also been the position of certain medieval churchmen, especially William of Occam, in regards to the divine realm and God’s omnipotence. Machiavelli and Hobbes secularized those arguments. It is true that The Prince lacks the philosophical wholeness and complexity of other works, but Machiavelli was not aiming for that. His Discourses on Livy comes closer to it. With The Prince, he was writing a practical guide for a successful ruler, a guide drawn from experience and an exemplar of a new science of statecraft.
Machiavelli’s prince did not, then, fail as a political concept. Indeed, Machiavelli’s goal of Italian unification through a dynamic leader, possessed of virtu and smiled upon by Fortuna, was realized, albeit more than three centuries later. Rather, because so much depended on the political skills of each ruler, particular princes failed while others succeeded. This flux destroys the social stability which is needed for productive lives and is traditionally the goal of government. Machiavelli reveals the concurrent strengths and weaknesses of monarchy and other single-executive systems of government. Leaving aside the potential problems of standing armies and heavy taxation discussed earlier, The Prince provides many lessons for us and reveals parallels to how our system functions.
For one, Machiavelli’s methodology is strikingly similar to the approach in The Federalist. Alexander Hamilton declared in Number 6, “Let experience, the least fallible guide of human opinions, be appealed to for an answer to these inquiries.” Use of illustrative historical events and commentaries on human nature based on similar psychological investigations run throughout those essays. One goal of the authors of The Federalist was to explain to their readers how this republican system could be successful as a practical undertaking, regardless of its conformance to some ethical ideal, the virtue—or lack thereof—of its politicians, or the problematic legitimacy of its creation.
Machiavelli also recognized that the fate of the prince and the people ultimately are tied together. The prince’s wise practice of statecraft will bring prosperity, which the citizens will defend vigorously, if needed. This is an eminently pragmatic position, well supported by examining history. As James Madison wrote in Number 40 of The Federalist in response to criticisms that the Philadelphia convention had acted illegitimately and against existing constitutional rules, “[If] they had violated both their powers and their obligations, in proposing a constitution, this ought nevertheless be embraced, if it be calculated to accomplish the views and happiness of the people of America.”
Another lesson is the need to avoid dependence on the particular qualities of one leader. It has long and often been recognized that the Constitution creates a potential for strong executive government. Examples abound, from Alexander Hamilton’s broad claims of implied executive powers in his Pacificus essays from 1793, to Woodrow Wilson’s positively Machiavellian observation in his book Constitutional Government, “If he rightly interpret the national thought and boldly insist upon it, he is irresistible. . . . His office is anything he has the sagacity and force to make it.” Most telling are the numerous claims of far-reaching power to act in emergencies by presidents down to the present, which emergency powers then conjure more emergencies. While the political benefits from energy and decisiveness in the executive were duly noted, the framers of the Constitution intended the system of structural separation of powers to diminish the dangers from concentration of power in a single ruler.
Finally, there was the need to deal with the destructive factional politics that plagued Italian cities during Machiavelli’s time and beyond. The Prince proposes one manner—the charismatic leader whose skill will prevent these factions from entrenching themselves. The Constitution recognizes the problem, but proposes a different solution, to set the factions against themselves in peaceful competition by multiplying their number and diversity so that none become entrenched.
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Federalists and Anti-federalists on Machiavelli and a Well-constructed Government Able To Check Attempts To Seize and Hold Power
90 in 90 2022, Ron Meier, 6. Guest Constitutional Scholar Essayists, Blog Essay 23: Federalists and Anti-federalists on Machiavelli and a Well-constructed Government Able To Check Attempts To Seize and Hold Power – Guest Essayist: Ron Meier, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Ron Meier, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesAs Professor Joerg Knipprath notes, Webster defines Machiavellian as a term often used to describe someone who employs cunning, duplicity, or bad faith tactics to get what he wants. Synonyms include cutthroat, immoral, unconscionable, unethical, unprincipled, unscrupulous.
Only 250 years before the rise of revolutionary fever in the American colonies, Machiavelli’s observations on political power were published. Those observations were more a description of how government worked at the time he wrote than a prescription of how government should work. Government in the British colonies in the 18th century, in many ways, looked too Machiavellian to our Founding Fathers and influenced their decisions about how to form a new government, more specifically how to minimize human nature’s inclinations for control and power by those to be trusted as America’s future political leaders. Machiavelli’s tenure in political office in the Republic of Florence was sandwiched between the long Medici reign before its overthrow and the Medici restoration, with the aid of Papal troops, less than 20 years later.
In the turmoil of those years, Machiavelli saw that raw power determines who rules; natural law, religious faith and morality were irrelevant to rule and therefore, a secular government was more the norm. Preserving the state, not protection of individual rights by the state, was the objective of government; and whatever force was necessary to preserve the state, provide security for its citizens, and stability was acceptable. Machiavelli is considered by many today as the father of political science, generations before the term “political science” came into common usage.
Considerable discussion occurred during and after the 1787 Constitutional Convention between those arguing for and against a strong, energetic President. This was understandable in light of the recently concluded war of independence from a perceived strong British ruler whose “long train of abuses and usurpations” were listed in the Declaration of Independence.
In Anti-federalist 70, the author, arguing against a strong and energetic executive says, “In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous.” He then adds, “So far is it from its being improbable that the man who shall hereafter be in a situation to make the attempt to perpetuate his own power, should want the virtues of General Washington, that it is perhaps a chance of one hundred millions to one that the next age will not furnish an example of so disinterested a use of great power.” Although Washington was not yet in office as President, the author recognized that Washington would probably be elected President if the Constitution were ratified, but that subsequent Presidents, lacking the moral and civic virtues of Washington, may hunger for unlimited power and become the despot that all feared. The author went on to say that, “If we are not prepared to receive a king, let us call another convention to revise the proposed constitution, and form it anew on the principles of a confederacy of free republics.”
In Anti-federalist 71, the author says that “the best security for liberty was a limited duration, and a rotation of office, in the chief executive department.” And, in Anti-federalist 72, arguing against unlimited reelections of a President, “Upon his being invested with those powers a second or third time, he may acquire such enormous influence and, haughtily and contemptuously, turn our poor lower house (the only shadow of liberty we shall have left) out of doors, and give us law at the bayonet’s point. We seem to be fast gliding away; and the moment we arrive at it — farewell liberty.” The Anti-federalists’ knowledge of the history of ancient governments reflected their concerns that political offices in the proposed Republic didn’t have more stringent restrictions on the ability of those elected to federal office to be reelected. Where restrictions were in place, the risk of despots holding office was reduced and where such restrictions were not in place, authoritarian government often grew.
The Federalists, on the other hand, took pains to illustrate that the checks and balances and separation of powers in the proposed Constitution would slow down the enactment of laws with extensive debate and thereby check the authoritarian impulses of the various branches. In modern terms, days, weeks, and months of debate were preferred to the ability of a President to use his phone and pen to enact new law rapidly. They also believed that the two, four, and six-year terms of office in the Legislative and Executive branches were long enough to enable the occupants of those offices to have a positive impact on the exercise of their enumerated powers, yet short enough to allow citizens to turn them out of office when their Machiavellian methods and authoritarian impulses, to override the will of the people, became too strong.
In Federalist 51, Madison states that, “In republican government, the legislative authority necessarily predominates.” Therefore, to avoid a legislative branch aggrandizing its power at the expense of the executive branch, the Founders believed that care must be taken in constructing the government to grant powers to the President to check legislative overreach. Also, they recognized that a legislature which knew that the President who, after his four-year term ended could not be reelected, could wait out a President whom the legislature deemed too willing to check their power and hope that the next occupant of the executive branch would be less willing to check the legislative powers with a veto. Over a period of time, patience by the legislature would enable them to accrue significant power. Therefore, the Founders decided that a President would not be forced to vacate his office, but could be reelected if the citizens so decided.
In Federalist 71, Hamilton discusses the advantages and disadvantages of a term of four years for the President. He says, “a duration of four years will contribute to the firmness of the executive but not long enough to justify any alarm for the public liberty.” In Federalist 72, Hamilton argues that a President shouldn’t be limited to only one four-year term, stating that there is a connection between “the duration of the executive magistrate in office and the stability of the system of administration.” This is easily observed in recent years as the Executive Orders of a prior President are frequently reversed immediately open the ascension to office of a new President, especially when a sitting President is defeated after his first term of office. Businesses that don’t know if a President’s Executive Orders will stand in the next administration are not willing to make long-term investments to grow their businesses.
In Federalist 23, Hamilton discusses the problems encountered during the fighting of the War under a Confederation form of government. He states the difficulty of requisitioning troops, supplies, and money to fight the war and of keeping morale high in the military ranks under such conditions. Hamilton says, of the country, “the Union ought to be invested with full power to levy troops; to build and equip fleets; and to raise the revenues which will be required for the formation and support of an army and navy, in the customary and ordinary modes practiced in other governments.” The President, as Commander in Chief, also must know that he has the authority to effectively lead the nation in time of war.
The Founders’ knowledge of the successes and failures of all types of government was deep; Machiavelli’s observations of what government transitions normally looked like provided an important, more recent, reminder of how quickly a Republic can fail internally if its government is not well constructed at birth and externally when confronted by powerful, amoral governments, led by autocrats’ intent on seizing and holding power.
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The 1579 Netherlands Constitution and the Founders’ Vision for Careful Balance of Federal Powers While Protecting the States
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 21: The 1579 Netherlands Constitution and the Founders’ Vision for Careful Balance of Federal Powers While Protecting the States – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerIn making the case for the ratification of the Constitution, the authors of the Federalist papers (Alexander Hamilton, James Madison, and John Jay) routinely looked to history for examples of what to follow, and, almost more importantly, what shouldn’t be followed. The Constitution, of course, was to be an improvement over the previous Articles of Confederation, and document whose flaws in the separation and balance of powers necessitated the drafting of the Constitution itself.
The Articles of Confederation was also built on historic example, and among these was the 1579 constitution of the Netherlands provinces—the subject of Federalist #20, authored by Madison. Created as a result of the “Union of Utrecht”—a treaty created between the seven northern Dutch provinces who had allied with one another to oppose the Habsburg-controlled southern provinces, this constitution laid out the shared power structure between these unified territories.
But Madison recognized that the flaws endemic in the document creating this Dutch confederacy were duplicated by the flaws in the Articles of Confederation. In laying out his criticism of the Netherlands Constitution, he said the following:
In other words, because of the structural flaws in how this constitution laid out the relationship between the provinces, it left this union weak and vulnerable. Madison went on to say, “It was long ago remarked [that] nothing but the hatred of his countrymen to the House of Austria, kept them from being ruined by the vices of their constitution.”
To be fair, there was a flaw in Madison’s essay (and it was a flaw repeated by others), in that Madison suggested that votes on issues of importance to these provinces had to be unanimous. This was untrue. William Riker, a political scientist and expert on federalism, said this in his 1957 journal article, “Dutch and American Federalism”:
Riker noted how favorably many of the founders (other than Madison) looked at the governmental practices within the Netherlands—which should come as no surprise given the breadth of Dutch colonial activity in the continent prior to the American founding. He said:
It should be noted that Professor Riker’s views on federalism changed over time as his expertise on the subject grew. In his 1987 book, The Development of American Federalism, he admits the following in the introduction:
But contemporaneous accounts underscore the relationship between the 1579 constitution and the Articles of Confederation. Pieter Paulus, who later became the first President of the Batavian Republic, wrote:
Yet, here we have Madison’s criticism, a criticism which may have been informed by his fellow-Virginian, William Grayson, a lawyer and soldier who later became a member of the United States Congress. Grayson had deep concerns about the Articles of Confederation, and how similar it was to the 1579 Netherlands constitution, writing to Madison:
This becomes reflected in Madison’s concluding remarks for Federalist #20, in which he says:
The answer then is made manifest in the choices made in the structure of the Constitution as it was ultimately adopted: carefully enumerated powers for the federal government, a balancing of those powers between branches of government, and the retention of all power not surrendered in the hands of the people themselves as well as state governments.
This theme is made manifest throughout the Constitution and, in just one example, one can note the balance and contrast between what is discussed in Article 1, Section 10, and Article IV. In Article I, Section 10, the founders placed very clear limits on the extent of state power—by making it clear, for example, that states cannot coin their own monies, nor could they negotiate treaties on their own. The reason for this is clear: building on the warning echoed by Madison in Federalist 20 (in part because of how he understood the flaws of the 1579 Netherlands Constitution), the drafters knew that while there might be intense internal debate between the states, that once an issue reached America’s shorelines, the nation had to speak with one voice. It would be chaos, for instance, if Massachusetts were negotiating one treaty with Spain, and Maryland were negotiating something different with Spain, or with an enemy of Spain.
In the same way that the federal government is responsible for regulating interstate commerce, these drafters also knew that it would likewise be chaotic if each state were creating its own currencies. So, they limited the power of the states in that regard as well.
But like all the other checks and balances, the trade-off to this is seen in Article IV—while the powers of the states are limited in terms of things like treaties and currency creation, Article IV gives a guarantee of protection to states. The federal government agrees to defend a state against military threats, and at the same time offers assurances in terms of working to make sure that each and every state treats each and every other state fairly. Article IV also makes guarantees as to the admission of new states into the Union, and a guarantee of a “republican” form of government.
With all of that in mind, the framers still felt it necessary to include the Supremacy Clause (Article VI, Clause 2), which says that the Constitution, and any laws that are created by Congress, are the “supreme law of the land.” So long as Congress creates laws that are based on the powers delegated to the federal government by the people (and the states), should those laws come into conflict with state laws, the federal laws take precedence.
But those laws have to be within those enumerated powers—and this is central to many of the policy and political debates of today. For much of the 20th century, the federal government’s authority was virtually unlimited in terms of legislation, and thus holding sway over competing laws that might be enacted by state legislatures, due to an expansive interpretation of the Commerce Clause (Article I, Section 8, Clause 3).
But in a series of Supreme Court decisions in the 1990s, the limitations on federal power were re-asserted. The Supremacy Clause remains, but that “leviathan,” as Professor Riker described it, is checked by the limitations on, and diffusion of, that power within our system of federalism.
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Flexibility to Act Without Violating the U.S. Constitution: America’s Founders Discuss History of Policy Vices Within the United Netherlands
90 in 90 2022, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 20: Flexibility to Act Without Violating the U.S. Constitution: America’s Founders Discuss History of Policy Vices Within the United Netherlands – Guest Essayist: Chris Burkett, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesIn Federalist No. 20, James Madison (with Alexander Hamilton) discusses the vices of the constitution of the United Netherlands. The United Provinces of the Netherlands, sometimes called the Dutch Republic, consisted of seven republics and was established through the Union of Utrecht in 1588. After decades of bloody religious wars, the sovereignty of the United Provinces was officially recognized with the Peace of Westphalia in 1648, but the union collapsed in 1795 during the Batavian Revolution.
In theory, Madison observes, the constitution of the United Netherlands seems to have successfully combined effective executive power with republican representation in a legislative body. “The sovereignty of the Union,” Madison writes, “is represented by the States General, consisting usually of about 50 deputies appointed by the provinces.”[1] The States General has well-defined powers and responsibilities – including the power to make treaties, to make war or peace, to raise armies and equip fleets, and to demand quotas of contribution from the provinces – and the individual provinces are restrained from engaging in certain actions that are deleterious to the other provinces or to the Union as a whole.
“The executive magistrate of the Union is the Stadtholder,” Madison continues, “who is now a hereditary Prince.”[2] Each of the seven provinces was led by a stadtholder, but the offices eventually became hereditary and, in time, the Prince of Orange came to hold most or all of the individual stadtholderships. The Stadtholder of the union was given many powers and prerogatives, including the power to settle disputes between provinces, and to command the federal troops and navy.
The United Provinces of the Netherlands, “as delineated on parchment,” seemed to have struck a form that balances popular representation with an energetic executive. “What are the characters which practice has stampt upon it?” Madison asks. “Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.” The first vice of the constitution of the United Provinces is that there is a nearly constant tension between the different aims and policies of the States General – which wants to preserve the republican nature of the government – and the Stadtholder, with his ties to wealth and other monarchical powers in Europe. In fact, Madison writes, the authority of the Stadtholder arises mainly “from his great patrimonial estates [and] from his family connections with some of the chief potentates of Europe.”[3] This tension between the foundations and objects of the Stadtholder and States General had led to frequent disagreements and conflicting policies between the two departments over commercial affairs and defense policies.
The second vice of the union is that the States General, though vested with general legislative authority, requires “unanimity and the sanction of their constituents” for the enactment of all policies and laws. Although the unanimity requirement arose from an assumed equality of the seven provinces, and a desire to protect the provincial interests of each, it had led to two further difficulties. First, the unanimity requirement meant that a single deputy in the States General could veto measures necessary for the good of the whole union. “The Union of Utrecht,” Madison writes, “reposes an authority in the States General seemingly sufficient to secure harmony, but the jealousy in each province renders the practice very different from the theory.”[4] The second difficulty this produces is that in times of great and urgent emergencies, the States General and the Stadtholder frequently violated the constitution by ignoring the rule of unanimity. A constitution that, of necessity, is frequently violated, Madison suggests, is fundamentally flawed and in need of improvement.
The Articles of Confederation, which governed the union of American states prior to the Constitution, suffered from this second vice in some important ways. The unanimous consent of all the state legislatures and state delegations in Congress was required for all amendments to the Articles of Confederation. In the Confederation Congress, supermajorities (nine out of thirteen state delegations) were required for Congress to raise revenues, make treaties, and do other things necessary for the good of the American Union. The Federalists defended the new Constitution’s ability to remedy these potentially deadly defects: the requirements for ratifying and amending the Constitution were reduced from unanimity to a supermajority of state conventions; furthermore, all acts of Congress under the new Constitution would require only a majority vote of both houses of Congress. This last improvement especially makes it less likely that the federal government would need to violate the Constitution to take necessary actions in times of crisis, as the United Netherlands had done on numerous occasions. This problem is further mitigated by the independence and discretion of the president to take certain actions in times of crisis without prior authorization from Congress; it is further mitigated by the fact that there are implied powers in the Constitution, as indicated by the necessary and proper clause in Article II. These improvements would give the federal government a degree of flexibility to better fulfill its responsibilities, especially with regard to national security, without the need to undermine the sanctity of the Constitution by frequent violations.
[1] The Federalist No. 20
[2] The Federalist No. 20
[3] The Federalist No. 20
[4] The Federalist No. 20
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United Provinces of the Netherlands and the Articles of Confederation: Factors Influencing Design Toward a Stable U.S. Constitution
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 19: United Provinces of the Netherlands and the Articles of Confederation: Factors Influencing Design Toward a Stable U.S. Constitution – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathHistorians have usually described the government of the Netherlands in the two centuries between 1579 and the political system’s collapse in the late 18th century as a “republic.” Consistent with his commentary about the government of Venice, James Madison did not approve of this characterization. In Number 20 of The Federalist, he deemed the United Netherlands “a confederacy of republics, or rather of aristocracies, of a very remarkable texture.” While at times complimentary in his assessment, overall he saw in their government further evidence of what ailed, in his view, all confederations, including the United States under the Articles of Confederation.
Like the Articles, the Dutch system was forged in a war for independence, the first goal of which was to survive militarily. The Dutch referred to their Revolt of the Netherlands as the “Eighty Years’ War.” Fighting against Spain began in 1566, the seven northern provinces of the Spanish Netherlands formally united in their common cause through the Union of Utrecht in 1579, a watershed step not unlike the agreements of mutual aid and action among the North American colonies in the years before 1776. The Dutch analogue to the American Declaration of Independence was the Act of Abjuration of 1581 against the king of Spain. There were some truces and cessations of hostilities in subsequent decades, but independence was not officially recognized until the Treaty of Westphalia in 1648 which ended the much broader European conflict known as the Thirty-Years’ War. Still, the Dutch Republic had been functioning as an independent nation long before the status became official.
In the romanticized founding myths of the Dutch, the struggle was about religious toleration and national independence precipitated by an inquisition launched by the Spanish crown in support of the Council of Trent of 1543 and the Catholic Counter-Reformation. That may have been the motivator for some portion of the populace, and the assertion was useful in papering over the tensions which arose among the provinces during the war. The general reality was less lofty and more prosaic.
The Habsburg family ruled the Holy Roman Empire. They had received 17 provinces of the Duchy of Burgundy in 1482, which were allotted to the family’s Spanish branch in 1556. What happened next sounds familiar to the student of American history. The new Spanish king, Philip II, sought to centralize administration over these provinces located some distance from Spain, and to increase the efficiency of tax collecting. This would diminish the power that local bodies had previously exercised under the more hands-off approach of the Burgundians and the Emperor. The commercial towns in the southern provinces and the local nobles viewed this as an attack on their ancient privileges, secular and religious.
With resistance turning into rioting in 1566, the Spanish government sent an army, led by the Duke of Alba. Although a very capable military leader said by some to be one of the greatest of all time, he was a harsh governor, referred to by the Dutch as the “Iron Duke.” His army was generally successful against the rebels, but his policy of mass executions, sackings of towns, and massacres coalesced the population against the Spanish. The rebels received the support of a Catholic German-Dutch prince, William of the House of Orange-Nassau, the incumbent royal governor of several of the provinces. Colloquially—but unjustifiably—known as William the Silent for his supposed self-control not to erupt in anger, he was an effective political leader. As one of the richest Dutch nobles, he was also an important financial supporter of the rebels.
Although William had some successes against the Spanish army, the Duke of Alba eventually defeated his forces. William fled to his ancestral lands in Germany, from where he organized several mostly unsuccessful invasions. In 1573, Philip II relieved Alba of command and instituted a policy of reconciliation and acquiescence to greater local control. That split the rebels. The mostly Catholic southern provinces, which constitute Belgium today, returned to the Spanish fold. The seven increasingly Protestant provinces of the north remained in rebellion under William’s leadership. Dutch military fortunes brightened after the army of the United Provinces was formed following the Union of Utrecht. The army was placed under the command of William’s son, Maurice, after William was assassinated by a Spanish agent in 1584. Prince Maurice remained a prominent military and political leader for the next forty years.
One facet of the conflict at which the Dutch were consistently better than the Spanish was at sea. The northern provinces had long been oriented to fishing and maritime trade. Their coastal trade surpassed that of England and France in the 16th century. By the 17th century, their horizon had expanded to oceanic trade and the acquisition of colonies and foreign trading concessions. Along with that experience came skills in naval warfare. Professor Scott Gordon, in his thorough work on checks and balances in older constitutions, Controlling the State, estimates that, in the middle of the 17th century, the United Provinces owned more shipping capacity than England, France, the German states, Spain, and Portugal—combined. Amsterdam became the leading financial center of the world until it was finally replaced by London a century and a half later. It was the Dutch bankers from whom John Adams sought help during the American Revolution, because that was where the money was. Amsterdam was also one of the largest cities in Europe in the 17th century, having grown from 100,000 to 200,000 population in the middle decades.
Although the seven provinces were formally the main constituent parts of the “United Provinces of the Netherlands,” the towns were the actual foundation of the Dutch Republic’s political structure. The approximately 200 native Dutch noble families had status but limited power. There was not the same tradition of feudalism based on relationships of lord and vassal as in other European domains. In part, this was due to the closeness to the sea, with its sources of sustenance and wealth. In part it was due to the fact that for generations, land had been recovered by draining swamps or building dikes. These “polders” were claimed by commoners.
The towns were governed by the Regents, a wealthy subgroup of the merchant elite. The towns traced their charters and privileges to the medieval period. The Regents claimed to act for and represent the citizenry. However, their authority did not rest on broad political participation. From that perspective, the structure was not a republic, but an oligarchy. Meetings of the town councils controlled by the Regents were not open to the public. At the same time, the Regents did not constitute a class-conscious bourgeoisie in a Marxist sense. Rather, their actions seem to have been driven by local identity and preserving their local power. This town-centric system of governance remained until the reorganization of the Netherlands after the end of the Republic in the 1790s.
The towns built their own defense installations and levied taxes to maintain them, to preserve public order, and to provide for the poor. They also operated their own courts, enforced provincial laws, and administered provincial policies. The policy-making bodies, the town councils, generally had between 20 and 40 members. They elected various burgomasters annually from the Regent class to carry out executive and judicial functions.
The oligarchic character of the town governments was modulated somewhat through the militia, a combination military unit and social club. They were composed of troops of well-trained and heavily-armed men. Because members had to supply their own weapons, the militias consisted of middle and upper-middle class volunteers. They were led by officers from Regent families appointed by the town councils and were expected to carry out the latter’s wishes in case of civil disturbances. According to sources cited by Professor Gordon, riots were a not-uncommon manner for the citizenry to provide feedback to the Regents about their policies. The militia sometimes stood back if they opposed those policies themselves. Such expressions of popular discontent would have been particularly potent because the towns were still rather small, with the homes of the Regent families in close proximity to the other residents.
Gordon considers the failure of the Dutch Republic to provide less destructive means of popular expression of opposition to the town councils as one of its defects. Perhaps. But such riots were not uncommon in the history of the American republic, with apparently a customary acceptance of a degree of violence before the militia would be summoned. Recent events show that still to be a characteristic of American society. Whether that shows a defect in the republican nature of the political structure created in the constitutions of the United States and the several states is an interesting speculation.
The level of government above the towns were the provinces, formally the constitutional heart of the Dutch Republic. They were governed by entities called the “provincial states,” another institution formed in the Middle Ages. This term is not to be confused with the American concept of “states” as distinct political domains. Rather, the term refers to specific constitutional bodies which governed such political domains. These were assemblies of delegates from the towns. The members were selected by the town councils typically from the members of the Regent families. A town could send more than one delegate, but each town only had one vote, regardless of its population. However, despite this formal equality where decisions were generally reached by compromise and consensus, a dominant town would necessarily exercise a greater influence. Amsterdam as the largest and wealthiest town within the province of Holland provides a telling example. A province’s nobility also had one vote.
The principal obligation of the provincial states was to maintain the province’s military forces and to provide a system of provincial courts to preside over trials for various crimes and for appeals from the local courts. These assemblies could also assess taxes, but were dependent on the towns to collect them. Not infrequently there might be tension between the provincial state and the stadholder, the province’s chief executive from the House of Orange. Those tensions were especially acute and frequent in Holland, due to the strong anti-Orangist sentiments of Amsterdam, with its bourgeois merchants, its growing tradition of secular and religious dissent, and its cosmopolitanism. At times, Holland, as well as other provinces, refused to elect a stadholder when the prior one died.
At the apex of the Republic’s constitutional structure was the States-General, the body of around 50 delegates from the provinces. It met at The Hague. Although a province might send more than one delegate, each province had one vote. This equality of sovereigns marked the constitutional nature of the Republic in Madison’s characterization of it as a confederacy. As with the provincial states, this formal equality was tempered by the inequality of size and wealth among the provinces, in particular, Holland. That province’s delegation’s willingness to provide—or not—needed funding gave it influence which better reflected its economic position. The terms of office of the delegates were determined by the provinces and could be at pleasure, for one or more years, or for life. The agenda of the States-General was set by its president, which position rotated weekly among the provinces. Unanimity was required for action, although that was sometimes ignored if a particular need arose. It had various working committees to formulate policy and a Council of State to carry out its executive functions. The Council of State was composed of the provincial stadholder and twelve other appointees of the provincial states.
Initially, the States-General was to deal with the military campaign for independence. Thereafter, its role continued to be about war in the various conflicts in which the republic found itself in the 17th century. Beyond that, the States-General had broad responsibilities over coinage, diplomacy and foreign commerce and, as the Dutch quickly entered the pursuit of overseas empire, colonial affairs. Although it had the potential to become a national legislative body, that potential remained inchoate. Aside from the overarching political jealousies of the provinces and towns to maintain their local privileges, there were more direct limitations on the powers of the States-General, as well. For one, that body could not generally impose taxes directly. It could tax the colonies, but that yielded rather little. It could make assessments on the provinces, but that depended on the willingness of their delegates to agree, especially the delegation from Holland which typically had to bear at least half of the burden of an assessment. Any loans sought by the States-General for the benefit of the Republic must be approved by the provinces. It becomes clear why Madison saw the Republic as a case study for the fate of the Articles of Confederation.
Finally, there were the stadholder of the provinces and the de facto stadholder of the United Provinces. The office was derived from the provincial governorships the Holy Roman Emperor had established. Each provincial state selected that province’s stadholder for life. More than one province could appoint the same person, a very common scenario. During the two centuries of the Republic after 1589, all provinces always appointed members of the House of Orange-Nassau. When the need arose, the province of Holland, as the most important of the union, always appointed the head of that family. Technically, there was no Stadholder of the United Provinces. However, by customary practice, the States-General always appointed the stadholder of Holland to be the Republic’s commander-in-chief. This made the head of the House of Orange the main political leader of the most populous and prosperous province and the commander-in-chief of the Republic’s armed forces. The stadholderships generally became hereditary in the mid-17th century.
The power of the Prince of Orange over the armed forces included the power to set up military tribunals and to appoint higher-level officers. He also met with foreign ambassadors and had some adjudicatory powers, such as settling disputes among the provinces. His influence was bolstered by two broad sources. First, at the level of the union, he sat on all working committees of the States-General and on the Council of State. Together with his life term, this gave him broad knowledge about political matters over a much longer time frame than the provincial delegation, analogous to the Venetian Doge’s position in relation to the Senate and Great Council. If knowledge is power, this made the prince powerful, indeed.
Second, being the stadholder of Holland and, usually, several other provinces gave him significant control over provincial and even town affairs. The provincial stadholder was the head the province’s highest court, could pardon criminals, and had significant patronage powers over the appointment of officials at all levels. He could appoint certain burgomasters, although those had to be made from lists submitted by the Regent-controlled town councils. These roles, some formal, others by accepted practice, exercised at all levels of government, and extending to civil, military, and judicial matters, made the Prince of Orange in some ways the vortex around which Dutch politics swirled. In the end, however, with the vague constitutional dimensions of the office, it was the personality and talents of the particular stadholder which defined his powers.
A curious spectacle occasionally arose when various provinces left their stadholderships unoccupied. Even the province of Holland at one point in the 18th century left that position unoccupied for 45 years. In the 17th century Holland also prohibited the House of Orange from holding the stadholderships. Soon thereafter, its provincial state abolished the office altogether. That experiment lasted only five years, when those acts were repealed in the face of an invasion by England and France. One modern commentator quoted by Professor Gordon described the princes of the House of Orange as having “a special status within the Dutch state, almost mystical … in its nature.”
The Republic’s constitution was weakened in the 18th century in part due to factional rivalries in Amsterdam, the largest and wealthiest city in the largest and wealthiest province. The monarchist pretentious of the House of Orange clashed with the increasingly militant endemic anti-Orangist attitudes of the urban bourgeoisie. With a hardening of factional positions, political accommodations became more difficult. As well, the financial burdens of the colonial empire and the military needed to support it began to overwhelm the capacities of what was, after all, a rather small country. Still, it took the military might of, first, the Prussian Army and, thereafter, Napoleon’s forces, to end the Republic’s two centuries of successful government.
Madison in Number 20 of The Federalist disparages the Dutch system, his stand-in for the Articles of Confederation, as, “Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace; and peculiar calamities from war.” He seems to have derived his information from a book by Sir William Temple, a 17th century British ambassador to the United Provinces. But Temple was hardly an unsympathetic observer of the Republic. Where Madison saw deadlock leading to eventual dissolution and anarchy, Temple saw a system which attracted large numbers of foreigners from polities less conducive to liberty. Certainly, the federal nature of the United Provinces stood in stark contrast to the centralization of power in national governments generally, and in monarchs particularly, which was ascendant in the Europe of the time.
If one uses classic designations of constitutions, the Dutch system at first blush most closely resembles an oligarchy. If one uses Madison’s definition in Number 10 of The Federalist, it was a closed system controlled by the wealthy Regent families and the Prince of Orange. It failed the test of broad public participation even by the limited standards of the early American polities. But, if one evaluates a republic functionally, as a political structure which provides overall social stability, fosters the general well-being of the people, and promotes the liberty of individuals to follow their own paths to fulfilled lives, all by reigning in various political institutions through a functioning balancing of powers, the constitution of the United Provinces qualifies. The mutual checks provided among the levels of government (town, provinces, union), among the provinces themselves, and between the stadholder on the one hand and the provincial states and States-General created a system which protected the liberties of the people better than other contemporaneous countries. More bluntly, as Professor Gordon explains, “[W]ith this political system, the Dutch not only fought Spain and France to a standstill and invaded England, but also made their little collection of swamps and polders into the richest, most civilized, nation in the early modern world.”
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U.S. Constitution Safeguards for the Whole Union: Disunity Prevention the Founders Built in After Studying the Holy Roman Empire
90 in 90 2022, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 18: U.S. Constitution Safeguards for the Whole Union: Disunity Prevention the Founders Built in After Studying the Holy Roman Empire – Guest Essayist: Chris Burkett, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesIn the previous essay we saw the Federalist’s critique of the Holy Roman Empire and its two principal vices: first, a lack of effective executive authority in the confederacy; and second, a lack of centralized control and effective checks by the national authority over the member states. Both of these defects were strongly prevalent in the American Union under the Articles of Confederation as well. Under the Articles of Confederation, ratified in 1781, there was no independent executive branch. Important matters affecting foreign policy and national security were handled by Congress, which created numerous “executive boards” to formulate and execute defense policies. This uncoordinated approach to fulfilling executive functions, as Alexander Hamilton observed, meant that “their decisions are slower, their energy less, their responsibility more diffused.” Hamilton continued, “Congress is properly a deliberative corps and it forgets itself when it attempts to play the executive. It is impossible such a body, numerous as it is, constantly fluctuating, can ever act with sufficient decision, or with system.”[1]
Congress also lacked any real power – especially a tax power – under the Articles of Confederation, and had no way to coerce or enforce their policies upon delinquent or disobedient states. “The next most palpable defect of the subsisting Confederation, is the total want of a SANCTION to its laws,” Hamilton wrote. “The United States, as now composed, have no powers to exact obedience, or punish disobedience to their resolutions.”[2] All revenue for the purposes of defensing the Union was raised through the voluntary compliance by the state legislatures, which was frequently lacking. Furthermore, the manner in which Congress was constituted gave the individual states great influence – if not complete control – over the affairs of Congress. Each state had one vote in Congress, and state legislatures selected their congressional delegations with authority to recall those delegations at any time. Supermajorities (nine out of thirteen state delegations) were required for Congress to enact important matters such as requisitions for revenue and making treaties. Despite specific restrictions on the states, the structure of government under the Articles of Confederation gave the individual states enormous influence and control over Congress; Congress, on the other hand, had no means by which to compel the states to comply with the Articles of Confederation. In other words, the Articles of Confederation had recreated the same fundamental defects of the constitution of the Holy Roman Empire. The result was a lack of unity, coordination, and effectiveness in doing those things vitally important for the good of the whole Union – or as James Madison put it, there was a complete “want of concert in matters where common interest requires it.”[3]
The framers of the Constitution remedied these defects by creating an independent executive with a large degree of discretionary power, especially in the area of foreign affairs. “Energy in the Executive is a leading character in the definition of good government,” Hamilton observed. “It is essential to the protection of the community against foreign attacks; it is not less essential to the steady administration of the laws.”[4] The unitary nature of the executive – as opposed to executive boards or committees – provides the office with the “energy” to act on important matters with “decision, activity, secrecy, and dispatch.” The Constitution deems the president “Commander in Chief” of the military forces of the nation, giving the office a further degree of discretion, free from the influence of a cumbersome Congress, in taking swift measures necessary for the security of the Union. Even the longer four-year term in office, combined with the mode by which the president is elected – through an electoral system rather than being appointed by Congress or the state legislatures – gives the executive a degree of independence to do those things necessary for the steady administration of the laws and the protection of the states from foreign threats.
The framers of the Constitution also found remedies to prevent the “inordinate pride of state importance” from hindering the national government’s efforts to promote the good of the whole Union.[5] By dividing Congress into two houses, the preponderance of state influence in national affairs is confined to the Senate, in which state legislatures would appoint the senators (as opposed to direct election by the people of members in the House of Representatives). Rather than each state having one vote in the Senate, the two senators do not need to agree or vote in the same way on any particular law or policy. The framers also overcame reliance on the voluntary compliance of the states to provide the needed revenue for national purposes by giving to Congress a real tax power. “There is no method of steering clear of this inconvenience,” Hamilton observed, “but by authorizing the national government to raise its own revenues in its own way.”[6] Even the “republican guarantee” clause in Article IV section three gives the national government the right to protect every state of the Union “against Invasion [and…] domestic violence.” “Without a guaranty,” Hamilton wrote, “the assistance to be derived from the Union in repelling those domestic dangers which may sometimes threaten the existence of the State constitutions, must be renounced. Usurpation may rear its crest in each State, and trample upon the liberties of the people, while the national government could legally do nothing more than behold its encroachments with indignation and regret.”[7]
Through these improvements, the Constitution of the United States provides the national government with the “energy’ needed to effectively repel foreign and domestic dangers, a higher degree of independence from state interference in national affairs, and the means to prevent the frequent dissentions, rebellions, and civil wars that constantly plagued the Holy Roman Empire.
[1] Alexander Hamilton to James Duane, 3 September 1780.
[2] The Federalist No. 21.
[3] James Madison, “Vices of the Political System of the United States,” 1787
[4] The Federalist No. 70
[5] The Federalist No. 21
[6] The Federalist No. 21
[7] The Federalist No. 21
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Ancient Confederacies, the Holy Roman Empire, and Weaknesses of Divisive Executive Authority
90 in 90 2022, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 17: Ancient Confederacies, the Holy Roman Empire, and Weaknesses of Divisive Executive Authority – Guest Essayist: Chris Burkett, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesIn the months leading up to the Constitutional Convention in Philadelphia in 1787, James Madison carefully studied ancient confederacies so as to learn from their failures and improve upon their defects. He published his critique of the Holy Roman Empire in The Federalist essay number 19, co-authored by Alexander Hamilton.
The Holy Roman Empire was a union of kingdoms in Western, Northern and Southern Europe. It arose in the Early Middle Ages and lasted over eight centuries until its dissolution after the Napoleonic Wars. The Holy Roman Empire was initially under the nominal authority of one “emperor,” who claimed the right to rule as the heir of the emperors of Rome. Eventually the office became “elected” after political control devolved to the dozens of kingdoms and territories that comprised the union.
Madison’s critique of the Holy Roman Empire focuses on two fundamental defects. The first is a lack of effective executive authority in the confederacy. Though initially under the centralized control of a single sovereign, the “principal vassals” claimed more localized control over the affairs of the union. “In the eleventh century the emperors enjoyed full sovereignty,” Madison writes. “In the fifteenth they had little more than the symbols and decorations of power.” The Emperor did retain certain prerogatives, including a veto power over the resolutions of the legislative body. Two judicial bodies, under control of the emperor, had “supreme jurisdiction in controversies which concern the empire.” From these institutions one might surmise that the supreme executive was extremely capable and efficient in directing the affairs of the union. But real political power in the Holy Roman Empire was vested in a Diet that represented the constituent members of the union.
The lack of an efficient executive had left important matters of security and commerce in the hands of a Diet whose members were deeply divided over local interests. “Military preparations must be preceded by so many tedious discussions, arising from the jealousies, pride, separate views, and clashing pretensions of sovereign bodies,” Madison writes, “that before the diet can settle the arrangements, the enemy are in the field; and before the federal troops are ready to take it, are retiring into winter quarters.” The military forces of the union are “defectively kept up, badly paid, infected with local prejudices, and supported by irregular and disproportionate contributions to the treasury.” This vice has left the confederacy constantly open to the predations of neighboring enemies.
Madison’s second and most important critique of the Holy Roman Empire is a lack of centralized control and effective checks over the member states. In theory, the member states are expected to restrain themselves from infringing upon the duties of the central government and are pledged to obey its authority. As Madison writes,
Sufficient constitutional restraints seem to have been placed on the member states to prevent them from undermining the interests of the whole union. However, as Madison writes: “Nothing would be further from the reality. The fundamental principle on which it rests, that the empire is a community of sovereigns, that the diet is a representation of sovereigns and that the laws are addressed to sovereigns, renders the empire a nerveless body, incapable of regulating its own members, insecure against external dangers, and agitated with unceasing fermentations in its own bowels.” The central authority, in its weakness, had been forced of necessity to rely on local enforcement of the acts and policies of the Diet. “This experiment has only served to demonstrate more fully the radical vice of the constitution,” Madison writes. “Each circle is the miniature picture of the deformities of this political monster. They either fail to execute their commissions, or they do it with all the devastation and carnage of civil war. Sometimes whole circles are defaulters; and then they increase the mischief which they were instituted to remedy.”
The lack of any effective centralized authority to enforce the policies of the Diet reveals the tenuous nature by which the parts of the union remain barely united. This defect is revealed in the nearly constant acts of violence and injustice among the member states. “The history of Germany is a history of wars between the emperor and the princes and states; of wars among the princes and states themselves; of the licentiousness of the strong, and the oppression of the weak,” Madison writes. In sum, the vices of the constitution of the Holy Roman Empire are marked by “general imbecility, confusion, and misery.”
Despite these vices, one might ask, what allowed the Holy Roman Empire to persist for more than eight centuries? Not the constitution and institutions of the union, Madison concludes, but matters that rely more on “accident and force” rather than “reflection and choice.” “They are kept together by the peculiarity of their topographical position,” Madison writes, “by their individual weakness and insignificancy; by the fear of powerful neighbors…[and] by the mutual aid they stand in need of, for suppressing insurrections and rebellions.”
In the following essay we will explore the remedies to these defects that Madison and the framers worked into the Constitution of the United States.
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Electoral Structure and Allegiances of the Holy Roman Empire
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 16: Electoral Structure and Allegiances of the Holy Roman Empire – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathMuch of the history of the Holy Roman Empire was one of conflict and intrigue: among emperors and popes, emperors and nobles, and nobles themselves. Periods shaped by forces that fostered centralization of power in the hands of strong and capable emperors were eclipsed by developments that threatened to tear apart the Empire due to personal weaknesses or military miscalculations by the holders of the imperial title. Several generations of extraordinarily wise and astute rulers were inevitably followed by the collapse of dynasties and periods of political turmoil and social misery.
The collapse of the Western Roman Empire in the 5th century A.D. led to the formation of various Germanic kingdoms throughout the former territory. The Visigoths and other invaders attempted to carry on the Roman civilization, but lacked the administrative capabilities, technological know-how, and economic wherewithal to do so. They, in turn, also collapsed within a few generations. For the inhabitants of the former Roman domain, there was continuing danger from Germanic tribes, other marauders that are said to have been successors to the Huns, and, beginning in the 7th century, Arab raiders and armies. The Byzantine emperor’s control over those lands was nominal. The Roman Catholic Church was organizationally weak and doctrinally disorganized.
In the 8th century, the situation improved. A new line of kings had been elected by the nobles of a Germanic people, the Franks. The most prominent was a warrior-king, Charles. He defeated other German tribes and pushed against the Muslims in Spain whose advance into Frankish territory had been stopped by his grandfather, Charles the Hammer. Pope Leo III, eager to distance himself from the political and religious influences of the Orthodox Byzantine Empire, and hoping to spread the influence of the Catholic Church through the physical security offered by the Franks, crowned Charles emperor on Christmas Day, 800 A.D. Carolus Magnus, or Charlemagne, as he came to be known, was proclaimed the successor to the Roman Empire in the west. Indeed, from the imperial capital at Aachen, in the current Germany, he governed, as “Emperor of the Romans,” an area of Europe larger than anything seen since that empire.
Three decades after his death, Charlemagne’s realm was divided among his grandsons. Several centuries later, the western portion became the kingdom of France. The eastern portion became the German dominions. The end of the Carolingian dynasty in 911 resulted in the fracturing of the eastern portion. There were strong tribal loyalties within the various ancestral German domains, centered on several dukedoms and on the holdings of other, less powerful local strongmen.
In 936, Otto, the duke of the Saxons, a particularly warlike people who had been barely Christianized through force by Charlemagne a century earlier, was elected King of the Germans by the other nobles. A successful military campaigner who extended the eastern Frankish realm, Otto was given the imperial title in 962, after the Pope had appealed to him for military help. Referred to as Otto the Great, he established a new dynasty of emperors. His grandson, Otto III, revived the imperial seal of Charlemagne which had the motto, in Latin, that stood for “Renewal of the Roman Empire.” He understood this to be a clearly Christian empire, not only a political unit as imperium romanum, as reflected in his designation of the realm as imperium christianum. The successors of Otto III were weak and saw themselves as primarily German kings who happened to have holdings in Italy, not as rulers of a multicultural and transcendent Christian empire.
Once political conditions in western Europe became relatively settled by the end of the 10th century, the era of the warrior-king was succeeded by the era of the great landholding magnates. High feudalism emerged as the dominant social and political structure. Wealth, social standing, and power were based on land ownership and formalized through personal obligations between lords and vassals. On the continent more so than in England, local great men were independent of the emperor, who was addressed at times as “King of Germany” or the “German Roman Emperor.” These nobles retained their ancestral privileges and often claimed new ones.
Nevertheless, the idea of Empire remained alive. This political tension of a universal empire, yet of a German people, led externally to frequent, and not always enthusiastic or well-received, involvement of the Germans in the affairs of Italian communities. Internally, it resulted in the strange federal structure of what formally became known in the 13th century as the Holy Roman Empire. The interactions between emperors and popes further underscored the claims to universality. Papal coronation bestowed God’s recognition of the emperors’ legitimacy as secular rulers in Christendom. Refusal by a pope to grant that legitimacy, or removing it later by issuing a ban on the emperor, endangered the emperor’s rule by absolving the people, particularly the nobility, of loyalty to their earthly lord and excused them from fealty to any oath sworn to that lord. In a society vastly more religious than ours, within a feudal structure fundamentally based on mutual personal loyalties and obligations, such a development could prove fatal to the ruler.
After the end of the Saxon Ottonian line in 1024 and of its successors, the Frankish Salians, control over the Holy Roman Empire shifted in 1127 to a family from another part of the realm, the Hohenstaufen line from the Duchy of Swabia in southwest Germany. Under their best-known ruler, the charismatic and militarily and politically astute Emperor Frederick I Barbarossa (“Red beard”) from 1155 to 1190, the Empire achieved its greatest geographical expanse. Shortly after the rule of his similarly powerful grandson, Frederick II, the Hohenstaufen line ended, and the Great Interregnum brought considerable turmoil to the Empire and contests among various noble families for the imperial title. Rival emperors from different houses were chosen, and a general decline of the Empire’s territory and influence occurred. Not until the 16th century did the Empire regain a prominent position in Europe.
The struggle between emperor and nobles ebbed and flowed, depending significantly on the dynamism and capabilities of the emperors. These contests were endemic, with a parallel for several centuries in the conflict between the emperors and the popes. An example of the latter was the Investiture Controversy over the right to name local church leaders which led to a half-century of civil strife in Germany in the late 11th and early 12th centuries and ended with the emperor’s powers reduced as against popes and local nobles. Even as strong an emperor as Frederick II out of political expediency had to confirm, in statutes of 1220 and 1232, previously only customary privileges to the nobles, such as over tolls, coinage, and fortifications.
In 1493, Maximilian I from the Habsburg family, became Holy Roman Emperor. From that year, the Habsburg line provided an almost uninterrupted sequence of emperors until the Empire was abolished in 1806. A significant change in outlook under Maximilian was a turn to a more national identity and the stirrings of a nascent nation-state, in part due to the proposed Imperial Reform during the late 15th century supported by the energetic Maximilian. As a consequence, the realm began to be known as the Holy Roman Empire of the German Nation.
The Imperial Reform of 1495 was an attempt to modernize the administration of the realm and to increase the power of the emperor through more centralized governance. Aside from some success in making aspects of legal administration uniform through the use of Roman Law, the reforms came to naught by being ignored in the local principalities. There, the rulers generally strove to exercise the absolute powers of monarchs in England and France. As to the Empire, these local nobles guarded their privileges. Not to be outdone, the independent imperial “free” German cities, with their rising populations and increasingly powerful commercial bourgeoisie, were no less jealous of their privileges than the landed nobility.
The problem with the political structure of the Holy Roman Empire in the eyes of the framers of the American Constitution of 1787 was the overall weakness of the emperor in relation to the nobles. The Empire was a federal system, but, in their view, an unsuccessful version. The criticism is, overall, a fair one. Alexander Hamilton and James Madison, writing in The Federalist repeatedly identified the sources of weakness. Both emphasized the straightened financial circumstances in which the emperor frequently found himself to fund the costs of imperial government or necessary military actions against foreign countries. That difficulty was due at least in part to the obstructions created by local rulers to the flow of commerce.
Hamilton mentioned in Federalist Number 12 the emperor’s inability to raise funds, despite the “great extent of fertile, cultivated, and populous territory, a large proportion of which is situated in mild and luxuriant climates. In some parts of this territory are to be found the best gold and silver mines in Europe. And yet, from the want of the fostering influence of commerce, that monarch can boast but slender revenues.” Along the same lines, quoting from the Encyclopedia, he wrote in Number 22, “The commerce of the German empire is in continual trammels, from the multiplicity of the duties which the several princes and states enact upon the merchandises passing through their territories; by means of which the fine streams and navigable rivers with which Germany is so happily watered, are rendered almost useless.” In Number 42, Madison seconded Hamiltons’s point, “In Germany, it is a law of the empire, that the princes and states shall not lay tolls or customs on bridges, rivers, or passages, without the consent of the emperor and diet [the parliament]; though it appears from a quotation in an antecedent paper, that the practice in this, as in many other instances in that confederacy, has not followed the law, and has produced there the mischiefs which have been foreseen here.” Both writers painted this bleak picture as an omen of what would occur in the United States under the Article of Confederation. The Constitution would prevent this problem because, there, Congress was given “a superintending authority over the reciprocal trade of [the] confederated states.”
More fundamentally, however, the problem of the Empire and, by analogy, the United States under the Articles of Confederation was in the structure itself, an imperium in imperio, a state exercising sovereignty within another state. In Number 19 of The Federalist, Madison presented a lengthy overview of the Empire’s history. He identified problems with the structure, such as the difficulty to meet military emergencies or collect requisitions. The emperor had no holdings as such, only in his position as a hereditary sovereign in his ancestral lands or those acquired by marriage. Madison dismissed the Empire as a playground of foreign rulers because of the conflicts among the members of the Empire and between the emperor and the nobles large and small. This division allowed foreign rulers to split the allegiances of the nobles and to keep the empire weak. The worst example of this was the Thirty Years’ War from 1618 to 1648. While there were limitations on the powers of the nobles, and while the emperor had various prerogatives, these were paper powers, not real. Ultimately, the problem was that the empire was a community of sovereigns.
In support of Madison’s critique, one can look at one locus of power, the Reichstag, the name for the Imperial Diet or parliament. The Diet in some form already existed during Charlemagne’s time. Originally intended as a forum for discussions, not as a modern legislative body, by the 11th century it presented a serious counterweight to the emperor and a source of power for the nobles in two ways. First, the Diet participated in the making of law, typically through a collaborative manner with the emperor. Second, certain members of the Diet elected the Emperor.
The Diet during the Middle Ages comprised two “colleges.” That number was eventually raised to three as feudalism gave way to a more commercial modern society, and the growing importance of the bourgeoisie in the cities required representation of their estate. Each member of those colleges in essence represented a sovereignty, and the Diet in that light was a “community of sovereigns.” When the Diet met, the colleges and the emperor attended together. All were seated in a carefully prescribed manner, respecting their rank, with the emperor front and center and raised at least three feet above all others. Voting might be either per individual or per collegium as an estate in a complicated arrangement, depending on the rank of that individual and group.
The most important of these groups was the college of electors, which represented another locus of power in the Empire. Not only did the prince-electors vote individually, rather than as an estate, but they had the important occasional task of electing the emperor, the third institution of power. There was a fourth locus of power in the Empire, that is, the pope. Papal influence precipitated many political crises in medieval Europe, because the emperor was not properly installed until crowned by the pope, a practice discontinued after Charles V in the 16th century. However, papal influence is not crucial to an examination of the Empire’s political constitution as that structure influenced the debates over the American Constitution of 1787.
The election of the emperors was derived from the ancient practice of German tribal councils to elect their leaders for life. The direct male heirs of a deceased ruler generally had the advantage in any succession claim, but heredity was never a guarantee. That practice was extended first to the election of the kings of Germany by the dukes of the largest tribes in the 10th century, and then to the election of the emperors in the 13th century. Initially, the number of electors was somewhat fluid, but eventually there were four set secular and three set ecclesiastical electors. Over time, the membership was increased to nine and, briefly, to ten electors. The ecclesiastic rulers from certain archbishoprics eventually were replaced by secular electors, and, in time, the secular rulers themselves might be replaced by others as power shifted among rulers of various local domains.
A critical moment came with the promulgation of the Golden Bull of 1356 by the Imperial Diet at Nuremberg. A “bull” in this usage is derived from the Latin word for a seal attached to a document. Because of such a decree’s significance, the imperial seal attached to this document was made of gold. This particular golden bull was the closest thing to a written constitution of the Empire. It was the result of the political instability caused by contested elections and succession controversies. It specified the number—seven—and identity—by secular or ecclesiastical domain—of the imperial electors. Procedures were set for the emperor’s election, the specific functions of the electors were prescribed, and an order of succession was provided if an elector died. For example, to prevent rival claims from lingering and dragging the realm into disunity and war, the deliberations of the electors must result in a timely decision. Failure to decide on an emperor within 30 days in theory would result in the electors being given only bread and water as sustenance until they concluded their task.
Also significant was the Golden Bull’s undermining of the emperor’s power. Sometimes described as a German analogue to the Magna Charta of 1215 imposed by the English nobility on King John, it affirmed the privileges of the nobility against the emperor. Tolls and coinage were the right of the nobles in their domains. Crimes against them, including presumably through actions by the emperor, became treason against the empire itself. The rulings of their courts could not be appealed to the emperor. With a few notable episodic exceptions, such as the rule of Maximilian I and Charles V in the 16th century, this decree put the Empire on a gradual path to disintegration and reconfiguration as independent nations-states.
Voltaire is credited with the quip in his Essay on Customs in 1756 that the Empire was “neither Holy nor Roman nor an Empire.” Whatever might have been the veracity of his derision half a millennium earlier, when he wrote the essay his satire did not require much nuanced reflection on the part of his readers. The emperor in a basic sense was always the primus inter pares, and his power rested on the prestige of his title, the size and wealth of his own ancestral domain, and his skills as a political operator and military leader. Even with the emergence of the modern nation-state, the Holy Roman Empire remained just a confederation of de facto sovereignties, a matter underscored by the Treaty of Westphalia in 1648, which ended the Thirty Years’ War. The Habsburg ruler’s power was a far cry from the classic imperium of Octavian.
With the Reformation and the rise of the self-confident nation-state, the Roman and classic medieval idea of the universal Christian empire also became anachronistic. And it was no longer “Roman.” The conscious effort of Frederick I Barbarossa in the 12th century to demonstrate that the Empire was “Roman” stands in stark contrast with the 16th century, when emperors and the Diet emphasized its German character. As constituent German entities in the Empire, such as Prussia and Bavaria, grew more powerful, the struggles between emperor and nobles intensified and sharpened into outright wars as between independent nations. The imperial structure and its institutions, such as the Diet, became weaker and, indeed, irrelevant. Despite some belated and ineffectual efforts at reform and reorganization around the turn of the 19th century, the Empire, the thousand-year Reich, was dissolved a half-century after Voltaire’s remark, when Napoleon’s army crushed the emperor’s forces and effected the abdication of Francis II in 1806.
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Guarantee Clause of the U.S. Constitution: Republic of Venice, and Founding America on a Process of Governance Through Elections
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Daniel Cotter Essay 15: Guarantee Clause of the U.S. Constitution: Republic of Venice, and Founding America on a Process of Governance Through Elections – Guest Essayist: Daniel A. Cotter, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Daniel CotterAmerica’s Founders and Constitution Framers who gathered in Philadelphia in 1787, 235 years ago this May, did not arrive without examples of what worked and what did not work in past empires or republics. In Essay #12, we examined the Constitution’s wisdom in light of the Roman Empire and how certain provisions helped ensure against regime failure. In this essay, we explore further some of the Constitution’s wisdom in preventing such failures.
The Republic of Venice
While the Republic of Venice officially lasted eleven hundred years, the five hundred years referred to here is the constitutional period, from 1297 until the fall of Venice in 1797. In 1297, an ordinance was passed providing for the Council of Forty. Venice was ruled by the doge, elected by the Council, and ruled for life. The Founding Fathers would consider the form of government of Venice and provide protections against regime failure, including the Republican Guarantee Clause.
The Guarantee Clause
Article IV, Section 4 of the Constitution provides:
This was an important provision included by the drafters to ensure a process of governance through elections. The drafters had examples of the Republic of Venice and Rome and other regimes in collapse, with concerns about other forms of government, even those labeled republics, at its core.
In Federalist No. 57, the reality of various forms of republican government is acknowledged:
In 1787, ahead of the Constitutional Convention and back from a trip to the Netherlands, John Adams published the first of his three-volume set, “A Defence of the Constitutions of Government of the United States of America.” In it, his goal was to defend the tripartite form of federal government. He examined other republics, including Venice. As to Venice, he wrote:
“It was at first democratical…. the people…determined that one magistrate should be chosen, as the center of all authority…. He was to be for life…he was to have the nomination of all magistrates, and the power of peace and war.”
Adams then discusses the evolution of the system in Venice, with power being in a few and not in the populace. Adams proposed the form of republican government that would find its way into the Constitution.
Adams concluded Volume I:
In Federalist No. 39, James Madison refers to Venice and how the republican form of government, as the Founding Fathers envisioned it, was to be different. Madison wrote:
(Emphasis added.)
With the Guarantee Clause, majority rule is the way, and each state must have an electoral process in place, to prevent the usurpation of power by a monarchial actor such as the doge. It is an important safeguard put in the Constitution by the founders.
The Supreme Court has ruled that the Guarantee Clause cannot be challenged in federal court, as it is nonjusticiable.
Conclusion
The Constitution’s wisdom is shown in many ways, including with the Guarantee Clause of the Constitution. The careful drafting in 1787 has helped to ensure American Exceptionalism once again.
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Preventing Government Abuse: Federalist and Anti-federalist Debates on History of the Republic of Venice to Avert Concentration of Powers
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 14: Preventing Government Abuse: Federalist and Anti-federalist Debates on History of the Republic of Venice to Avert Concentration of Powers – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathIn Number 39 of The Federalist, James Madison objects to the habit of political writers of referring to Venice as a republic. He asserts that Venice is a system “where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles.” Later, in Number 48 of the same work, Madison raises the need of providing practical security for each branch of the government against the intrusion by others into its powers. He quotes Thomas Jefferson’s Notes on the State of Virginia. Jefferson, commenting about the formal separation of powers in the constitution of Virginia which he had been instrumental in creating, bemoaned the lack of effective barriers among the branches which would better preserve their respective independence. As a part of his critique, Jefferson opined that the concentration of legislative, executive, and judicial powers in one body would be “the definition of despotic government.” Further, it mattered not “that these powers would be exercised by a plurality of hands, and not by a single one. One hundred and seventy-three despots would surely be as oppressive as one. Let those who doubt it, turn their eyes on the republic of Venice.”
Leaving aside the historical veracity of Madison’s and Jefferson’s characterizations of Venice, their perceptions shaped their ideas of a proper “republican” political structure and how that would differ from Venice. Madison’s critique of a city governed absolutely by a small body of men made Venice an aristocracy or, more accurately, an oligarchy for him. It is ironic that opponents of the proposed Constitution launched that very calumny against the structure which Madison was defending. The Anti-federalists maintained a drumbeat of attacks about the supposed anti-republican, aristocratic Constitution. Some were thoughtful and substantive objections. Other writers opted for the popular appeal of satire, not likely nuanced and subtle humor, but an entertaining burlesque style.
Two examples suffice. A writer styling himself “Aristocrotis” wrote a lengthy satire in a pamphlet published in Pennsylvania in 1788.
“For my own part, I was so smitten with the character of the members [of the Philadelphia Convention], that I had assented to their production, while it was yet in embryo. And I make no doubt but every good republican did so too. But how great was my surprise, when it appeared with such a venerable train of names annexed to its tail, to find some of the people under different signatures—such as Centinel, Old Whig, Brutus, etc.—daring to oppose it, and that too with barefaced arguments, obstinate reason and stubborn truth. This is certainly a piece of the most extravagant impudence to presume to contradict the collected wisdom of the United States; or to suppose a body, who engrossed the whole wisdom of the continent, was capable of erring. I expected the superior character of the convention would have secured it from profane sallies of a plebeian’s pen; and its inherent infallibility would have debarred the interference of impertinent reason or truth.”
With the tune of satire set, Aristocrotis applied it to a libretto of feigned aristocratic enthusiasm for a document which, according to him, set the few to rule over the many, in accord with the law of nature. Particularly useful for this aristocratic scheme was a powerful Senate and both direct and deviously hidden restrictions on the potentially dangerous House of Representatives. Establishing the latter was an unavoidable practice reflective of the corrupt practices of the times, he acknowledged. However, providing for 2-year terms, instead of the annual elections common to republican state constitutions, in combination with Congress’s power to set the times, places, and manner of elections allowed that body’s membership to perpetuate itself. In addition, Congress had the power to tax so as to give itself independence over its own pay. Raising taxes on the people would have another salubrious effect: it will make them industrious. “They will then be obliged to labor for money to pay their taxes. There will be no trifling from time to time, as is done now….This will make the people attend to their own business, and not be dabbling in politics—things they are entirely ignorant of; nor is it proper they should understand.” If the people object, Congress had the power to make them comply by raising an army. This backhanded compliment reflected the deep republican antipathy to peacetime armies.
Another example of the style was an essay by “Montezuma,” which appeared in the Philadelphia Independent Gazetteer on October 17, 1787, a month after the constitutional convention adjourned. If anything, Montezuma was even more prone to literary absurdity and plot lines reminiscent of a Gilbert and Sullivan production a century later than was Aristocrotis. He begins, with all emphases in the original,
“We, the Aristocratic party of the United States, lamenting the many inconveniences to which the late confederation subjected the well-born, the better kind of people, bringing them down to the level of the rabble—and holding in utter detestation that frontispiece to every bill of rights, “that all men are created equal”—beg leave (for the purpose of drawing a line between such as we think were ordained to govern, and such as were made to bear the weight of government without having any share in its administration) to submit to our friends in the first class for their inspection, the following defense of our monarchical, aristocratic democracy.”
After this mockery of the Constitution’s preamble, Montezuma proceeds to a listing of provisions that animate his imagined constitution. Any semblance of republicanism in the actual proposal, such as the election of the House of Representatives is a mirage. After all, the actions of the House can be overridden by the aristocratic Senate’s refusal to go along or by the monarchic President’s veto. Moreover, there is no limit to their re-election, so that the basic republican principle of “rotation of office” found in the Articles of Confederation is eliminated. This will result in perpetual re-election and soon make the representatives permanent members of the ruling elite. The Senate is the main home of this elite and is structured with long overlapping terms so that there is continuity in membership to acculturate any newcomers to the elite’s ways. The states are made subordinate to, and dependent on, the national government and will be “absorbed by our grand continental vortex, or dwindle into petty corporations, and have power over little else than yoaking hogs or determining the width of cart wheels.” The office of President is so named to fool the rubes with a republican title which hides his kingship. After all, “[W]e all know that Cromwell was a King, with the title of Protector.” He is the head of a standing army, which will start out small, ostensibly to defend the frontier. “Now a regiment and then a legion must be added quietly.” This allows the elite “to entrench ourselves so as to laugh at the cabals of the commonality.” There is no bill of rights, including the “great evil” of freedom of the press. The list goes on. Concluding his send-up of the Constitution through its closing phrase, Montezuma writes, “Signed by unanimous order of the lords spiritual and temporal,” a direct reference to the British House of Lords.
Montezuma and Aristocrotis recited the common themes of the Constitution’s opponents about the document’s insufficient republicanism: Long terms of office, no rotation in office through mandatory term limits, an aristocratic Senate, a president elected and re-elected for sequential lengthy terms, a standing army, consolidation of the formerly sovereign states into a massive national government, and lack of a bill of rights. There were other, more specific concerns raised by thoughtful opponents, but the foregoing resonated well with the citizenry.
If those themes defined a constitution’s non-republican character, Venice looked little different from what the Philadelphia Convention had produced. True, a formal nobility was prohibited under the Constitution, but there had been no formal nobility set in place in Venice until the previous constitutional structure was changed in 1297. Rather, wealth determined one’s status. Further, the commoners controlled the operations of the government through the bureaucracy. There were other important political institutions, such as the Senate with its important role to define public policy in Venice, but the ultimate power to make law was in the most populous branch, the Great Council, acting without fear of a veto by another branch of government. Unlike the proposed American system, membership in the Venetian Senate and the executive apparatus, with the exception of the Doge, was limited to annual or even shorter terms, as was the practice in the early state constitutions. While the President’s selection was filtered through electors chosen by the state legislatures, and the election might finally be determined by the House of Representatives, the selection of the Doge occurred through a process which had a strong component of what was classically viewed as a “democratic” tool, the drawing of lots of the names of those who would make that selection. The likelihood of a cabal controlling this convoluted process in order to install a puppet as the head of government was no more likely in Venice than under the Constitution. Moreover, the Doge had little formal power, unlike the President. Finally, Venice had no standing army, although it did have a large and powerful navy. In short, to an opponent of the Constitution, “aristocratic” Venice had at least as “republican” a character as the proposed American system, and Madison’s contemptuous dismissal of the city as a small group governing with absolute power sounded hollow.
The writers of The Federalist strove mightily to rebut these attacks. Madison’s narrowly formalistic definition of a republic in essay Number 10 that its distinguishing characteristic was its system of government by indirect representation, rather than direct action by the citizenry, was useful to establish a minimum of republicanism in the proposed system. But, by itself, it would hardly suffice to address the Anti-federalists’ multiple attacks. Madison understood this weakness and went on the attack, cleverly turning his opponents’ arguments against them in connection with the problem of “factions” and their threat to individual liberty and political stability.
Today, that essay is considered a brilliant insight into how political actors operate and how the framers were practical men who set up the constitutional machinery for our system of interest group politics later dubbed by the American political theorist Robert Dahl as Madisonian “polyarchy.” Yet, at the time of its publication, essay Number 10 aroused hardly a murmur. The reason likely was that few disputed his premises or his discussion about the existence, sources, and problems of factions in society seeking their own ends in contrast to the republican ideal of the general welfare. Alexander Hamilton, for one, had addressed the same point in essay Number 9. As well, no one really challenged his definition as a necessary characteristic of a republic. They disagreed about its sufficiency for a republic and, more profoundly, about whether the Constitution adequately balanced the self-interests of factions while at the same time preserving liberty.
As in so many other instances, the writers of The Federalist took to heart the maxim that “the best defense is a good offense.” Madison argued first that the republican principle of the vote, as qualified by the states themselves per the Constitution, would protect against extended dominance by some political minority. As to liberty, Madison asserted that the very variety of political factions spread across the country made the national council less likely to succumb to a dictatorship of an entrenched faction than would be the case in a smaller, culturally more homogeneous polity, whether democratic or republican in structure, such as a state or a city, including Venice. In a memorable paragraph, he wrote:
“The influence of factious leaders may kindle a flame within their particular states, but will be unable to spread a general conflagration through the other states: a religious sect may degenerate into a political faction on a part of the confederacy; but the variety of sects dispersed over the entire face of it, must secure the national councils against any danger from that source: 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 a 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.’
In other words, to prevent the deleterious effects of factions, the answer is, the more, the better, and the larger the domain, the more factions will exist. In at least the sense of guarding against a federal tyrant, diversity really is our strength. He repeated this defense of the general government in other essays, including one of the most renowned, Number 51.
Essay Number 51 also provides a thoroughgoing refutation that the states will be “consolidated” into the general government, and that the latter will degenerate into a tyranny. Madison relied on the formal structural separation of powers with its mutual checks and balances and on reflections about human nature. As to the first, he found common ground with his opponents:
“In order to lay a due foundation for that separate and distinct exercise of the different powers of government, which, to a certain extent, is admitted on all hands to be essential to the preservation of liberty, it is evident that each department should have a will of its own; and consequently should be so constituted, that the members of each should have as little agency as possible in the appointment of the members of the others….It is equally evident, that the members of each department should be as little dependent as possible on those of the others, for the emoluments annexed to their offices.” In the opinion of its supporters, the Constitution did that, and to exactly the correct degree.
As to the second, Madison tapped into the cynicism of some of his antagonists and the generally pessimistic views most Americans had about human nature in its fallen state. In another series of hard-hitting paragraphs, he urged:
“But the great security against a gradual concentration of the several powers in the same department, consists in giving to those who administer each department, the necessary constitutional means, and personal motives, to resist encroachments of the others….Ambition must be made to counteract ambition. The interests of the man must be connected with the constitutional rights of the place. It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government of men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. A dependence on the people is, no doubt, the primary control on the government; but experience has taught mankind the necessity of auxiliary precautions.”
In short, government is a necessary evil commensurate with the fall of mankind. But, as a human creation, it, too, is naturally corrupt. To protect liberty, one cannot overly rely on the virtue of the citizenry, and certainly not on that of the rulers. Constitutions are made of parchment and need robust pragmatism to work. To do that, it is best to harness the natural self-interest of politicians to maintain and then expand their power, by setting them against each other in various independent centers of power, state, national, legislative, executive, and judicial. The scandalous and amoral proto-capitalist assertion by the early-18th-century economist Bernard de Mandeville in his satirical Fable of the Bees about how private vices, such as greed, lead to public benefits, such as economic growth, applies well in the political realm, it seems. Such a multiplicity of political institutions acting as checks on each other, exists in the entire system of human affairs, private and public, according to Madison. An examination of the competition among political bodies and offices which characterized constitutions throughout Western history, from Athens and Sparta to Rome and Venice, bears him out.
It must be noted that, by engaging their opponents in a debate about the objects of government in a republic, not merely about its operational grounding in the particulars of the concept of representation, the writers of The Federalist were able to turn the contest to their advantage. Debates over annual versus biennial election of representatives, or four-year terms for the President versus three-year terms for the governor of New York, was playing small ball. Those issues must be addressed and were, in various writings. Excepting the careful obfuscation of the institution of slavery, the big issues were given their proper due. Reassuring the people incessantly that the federal government was of little consequence when compared to the reserved powers of the states; that the President had exactly the right degree of power to provide energy to government while also being checked by Congress’s or the Senate’s power over the purse, war, and treaties; that a standing army was necessary to protect the country’s security and that the possibility of that army becoming dangerous to liberty was remote in light of the vastly larger number of armed Americans organized into militia.; that a bill of rights was both unnecessary and would be proposed once the Constitution was adopted. Those were the republican principles which mattered, and it was there that Madison and others successfully advocated the Constitution’s republican bona fides.
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Five Hundred Years of the Republic of Venice – What Went Wrong
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 13: Five Hundred Years of the Republic of Venice – What Went Wrong – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathIn Number 10 of The Federalist, James Madison defines “republic” and distinguishes that term from “democracy.” The latter, in its “pure” form, is “a society consisting of a small number of citizens, who assemble and administer the government in person, ….” Think of the classic New England town meeting or the administration of justice through a jury drawn by lot from the local citizenry. A republic, by contrast, is “a government in which the scheme of representation takes place, ….” It is distinguished by “first, the delegation of the government … [given] to a small number of citizens elected by the rest; secondly, the greater number of citizens, and greater sphere of the country, over which [a republic] may be extended.” The last quality is due to the fact that direct participation by citizens means that the place of government cannot be too far from their homes, lest they must leave their livelihoods and families, whereas the indirect system of governance in a republic only requires that the comparatively small number of representatives be able to travel long distances from their homes. One argument by historians for the collapse of the Roman Republic and its popular assemblies is that eventually there were too many Roman citizens living long distances from the city to make the required direct participation in the assemblies possible.
Political theorists and Western expositors of constitutional structures have characterized various systems as republics more broadly than Madison’s functional and limited definition. Examples abound. Plato ascribed the title Politeia (“Republic”) to his principal work on government. His conception of the ideal system was one of balance among different groups in society, with the leaders to come from an elite “guardian” class bred and trained to govern. This has been called government by philosopher-kings, but it was an obvious aristocracy in the true meaning of the word, government by the best (aristoi). Such government would establish a realm of “justice,” the cardinal virtue of the individual and the political order, through trained reason. He analogized the system to a charioteer who, through his reason guides the chariot safely along the path to the destination. The charioteer relies on the help of the strong obedient horse to control and direct the unruly horse which, driven by its appetites for physical satisfaction, wants to bolt off the path in search of immediate gratification of its desires. The charioteer is the guardian class, the strong horse the auxiliaries—disciplined and competent military officers and civil administrators—, and the unruly horse the masses. The system allows all to achieve their proper status in society in reflection of their inherent natural inequalities, provides stability necessary for social harmony, and is guided by an ethical principle—justice; hence, it is a republic.
Aristotle in his Politika did not discount the role of the demos in Athens. Like Madison, Aristotle considered democracy to be unstable and dangerous. From an analytic perspective, as was the case for Plato, democracy was a corruption of politeia, which he considered the best practical government for a city. Man is a politikon zoon, a creature which by his nature is best suited to live in the community that was the Greek polis. Once more, preserving a stable society and governing system was the key to maximizing the flourishing of each resident in accordance with the natural inequalities of each. Aristotle saw that balance in the “mixed” government of Athens, neither pure democracy nor oligarchy, in which the formal powers of the demos in the assembly and the jury courts were balanced by the Council of 500 and the practice of deference to the ideas and policies advanced by the elite of the wealthy and of those who earned military or civic honor.
The government of Rome before at least the First Triumvirate in 59 B.C. of Caesar, Pompey, and Crassus has consistently been described over the centuries as a “republic.” Polybius explained mikte (mixed government), the political structure of the Roman Republic, differently than did Aristotle. But he, too, deemed Rome a republic because of the balance among the monarchic, aristocratic, and democratic elements of its constitution. As important, the practical functioning of the competing political institutions limited the power of each. Polybius related the political structure and its evolution to Roman character traits that reflected Rome’s history and contemporary culture, which had stressed the maintenance of civic virtue. Polybius also understood that Romans were not immune to human passions and vices. Like Madison writing nearly two millennia later, he warned that Rome’s republican structures were better than other forms of government but were not impregnable barriers against political failure.
Cicero also described Rome as a mixed government, although his declaration that the people were the foundation of political authority was opposed to his approving description of the patrician Senate as preeminent. For Cicero, Rome’s system reflected the natural divisions of society, with leadership appropriately assigned to the best, the optimates. What made Rome a republic was that the mutual influences and overlapping authority of the various political institutions provided the stability for a successful community oriented to the thriving of all, the res publica. In the Ciceronian version, Rome was a republic, but an aristocratic one.
Closer to Madison’s time were the observations of Baron Montesquieu, an authority well-respected by the writers of The Federalist. Montesquieu’s The Spirit of the Laws has been criticized as contradictory and lacking systematic analysis. In a relevant portion which describes the English system, he calls the structure a mixed government, with separate roles for monarch, Lords, and Commons. He characterizes this as a republic, similar to the Rome of Polybius, because they embodied different interests and were able to check each other to prevent any of them from exercising power arbitrarily. England was a republic in function, but a monarchy in form.
Today, one sees systems self-named as republics that are a far cry from the foregoing examples. North Korea as the Democratic People’s Republic of Korea, the People’s Republic of China, and the erstwhile Union of Soviet Socialist Republics appear to have at most a passing resemblance to the Rome of Polybius or the England described by Montesquieu. Their “republican” connection seems to be at best a theoretical nod to the concept of the people, in the form of the proletarian class, as the source of authority, with the ruler chosen for long term, often life, by a token assemblage of delegates in a closed political system.
What then made classical Venice a republic? Based on classical taxonomy of “pure” political systems, Venice was an aristocracy. Although Venice had been founded under Roman rule, the most revealing period was the half-millennium between the constitutional reforms of 1297 and the Republic’s end after the city’s occupation by Napoleon in 1797. Like Rome and other classical polities, Venice had no written formal constitution or judicially applied constitutional law. The political structure was the result of practical responses to certain developments, the demands of popular opinion, and, as in Rome, the deference to custom traceable to the “wise ancestors.”
In 1297, membership in the nobility became fixed in certain families, and the previous fluid manner of gaining access through the accumulation of wealth during a period of economic expansion was foreclosed (the “Serrata”). That said, the number of nobles was significant, with estimates that it amounted at times to 5% of the population. The nobility governed, and their foundational institution was the Great Council. All adult males of the nobility belonged to the Council and could vote in its weekly meetings. That body debated and enacted laws. It voted on the appointment of the city’s political officials, of which at times there were estimated to be more than 800. Since the officials’ terms of office were brief, and turnover frequent, this task occupied considerable time of the Council.
In addition, there was another powerful political body, the 300-member Senate, Venice’s main effective policy-making institution. Nobles at least 32 years old were eligible to be selected by one of two procedures, election by the Council or by lot drawn from nominations by retiring Senators. Their annual terms overlapped, with no uniform beginning and end. As well, senior civil and military officers were members. The Senate determined policy for the government, most particularly in foreign and financial affairs. However, the agenda of the Senate was set by the 26-member Collegio, a sort of steering committee. While the Collegio could control what matters were debated by the Senate, it could only offer opinions held by various of its members about an issue, not submit concrete proposals.
The administrative part of the Venetian government was particularly complex, as described by Professor Scott Gordon in his well-researched book, Controlling the State. Regarding Venice, he refers frequently to Gasparo Contarini’s classic work from 1543, De Magistratibus et Republica Venetorum. Selection to office involved a confusing combination of voting and selection by lot. Gordon provides a schematic of the selection of the Doge, the city’s head. At once amusing and awe-inducing for its complexity, a simplified version is shown by: 30L-9L-40E-12L-25E-9L-45E-11L-41E-Doge, where L stands for selection by lot and E for election. In other words, at a meeting of the Great Council, the names of 30 members were drawn by lot. From them, 9 were drawn by lot. Those nine voted for 40 members of the Great Council. From those, 12 were drawn by lot, and so on, until 41 nominators were selected who would select the duke. This convoluted procedure had some anticipated benefits. Together with the prohibition of formal campaigning, the unpredictability of the eventual selecting body discouraged election rigging. Moreover, the time delays involved and the likely variation of opinions among the members of the Council encouraged debate in the Council and among the public about the qualifications of various potential candidates. Factionalism is unavoidable in large bodies, but its effects likely were somewhat blunted by this procedurally chaotic approach.
Although elected for life, the doge himself had little formal substantive power. He could do nothing official by himself. To meet visitors, or when he engaged in correspondence, at least two members of the Ducal Council had to be present. The Ducal Council was composed of six members elected for eight-month terms by the Great Council, each representing a geographic district of the city. They were the doge’s advisors, but also his watchdogs, much as the ephori (magistrates) of Sparta shadowed their kings.
Upon election, the new doge had to swear an oath on a document which detailed the limitations imposed on his office. Those limitations could vary, depending on the political conditions and the identity of the person selected. To remind him, the oath was reread to him every two months. After the doge died, his conduct was subject to an inquiry by committees of the Great Council. If he was found to have engaged in illegality, his estate could be fined, a not unusual result.
The office had little formal power, but it was more than simply ceremonial. The Doge presided over the meetings of the Great Council and the Senate, though he did so attended by the Ducal Council and the three chief judges of the criminal court. His power came from his long tenure and his participation in the processes and deliberations of all of the important organs of the city’s government.
There also were security and secret police organs, such as the shadowy Dieci (Council of Ten), elected by the Grand Council to staggered one-year terms, and the three Inquisitors. The Dieci targeted acts of subversion. The usual legal rules did not apply to them, to allow them to move quickly and secretly. The Inquisitors were a counterintelligence entity, set up to prevent disclosure of state secrets. Like all such extraordinary bodies connected to national security, they represented a potential threat to the republican structure of Venice. Notably, there is no record of them attempting to subvert the republic and seize power.
A final and very significant component of the Venetian system were the bureaucracy, the craft guilds, and the service clubs. All of these were controlled by the non-noble citizens of Venice. The first, especially, was an ever-expanding part of the government. Excluded from the political operations, commoners sought power through the bureaucratic departments. Eventually, a sort of bureaucratic oligarchy developed, as prominent families came to dominate certain departments over the generations. These cittadini roughly equaled the nobles in number, and they had the advantage that, unlike the annual terms of noble officeholders, they held their offices for life.
Venice acquired the reputation among writers during the 15th through 17th centuries of an “ideal” republic, with a stable constitution able to survive even catastrophic military defeat in 1508. The city was marked by good government and the protection of political and religious liberty. As noted by one modern commentator, Venice was “a Catholic state where the Protestant could share the security of the Greek and the Jew from persecution.” The system stood in contrast to the violent chaos and bouts of persecution that characterized the history of Florence and other Italian cities, and the economic backwardness and lack of social mobility of the emerging nation-states, such as France. It was a wealthy, capitalist society, which was easily able to raise more tax revenues than nation-states with several times its population. On the military side, although it had no regular army or militia, Venice had for several centuries the most powerful navy in the world, with bases around the eastern Mediterranean to protect its far-ranging commercial interests.
However, by the 18th century, the “myth of Venice” had become tarnished, as the city acquired a reputation for civic decay. Hamilton and Madison wrote disparagingly about it in The Federalist, the latter claiming that the city did not meet the definition of a republic. Thus, coming back to that earlier question, why was Venice’s constitution described as such by so many? Madison’s own definition in No. 39 of The Federalist, in which he rejects characterizing Venice as a republic, emphasizes that the governing authority in a republic must come directly or indirectly from the “great body of the people,” and the government must be administered by persons holding office during good behavior.
It is true that the organs of state in Venice were controlled by a noble elite of at most 5% of the population. Yet, the general exclusion of women, children, convicts, and slaves from governance in the American states, along with the impact on free male adults of the property qualifications imposed by many states on voting well into the 19th century, undercuts Madison’s claim that the American states were republics. Moreover, in Venice the cittadini carried out the ordinary operations of the government and were, therefore, a significant force in the execution of government policy. Looking at terms of office, with the exception of the doge’s life tenure, office holders in Venice were usually selected for annual terms, unlike the longer terms of office for President, Representatives, Senators, and judges in the United States. Indeed, it was the very length of the tenures of officers of the general government which the Anti-federalists decried as unrepublican, and which Madison defended.
That is not to say that Madison’s focus is misplaced. It is a necessary, but not sufficient, condition of a republic that there is a significant element of popular participation, albeit one not amenable to precise reckoning. As important, however, is that the government is not unlimited and power is not concentrated in a single person, class, or body of persons. The balance and separation of powers which Madison considers to be crucial in The Federalist Numbers 10 and 51, when he defends against the charge that the Constitution is a prescription for tyranny, is also clearly present in Venice’s, one might say Byzantine, structure of overlapping entities checking and supervising each other. It was a structure that, by Madison’s time had, with some alterations, served the city for 500 years since the Serrata, and another three centuries since its independence from Byzantium before then. It took Napoleon’s mass army, the military might of a large nation-state, to end Venice’s long-functioning, but obsolete city-state constitution.
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Necessary and Proper by the U.S. Constitution: The Founders on Limiting Federal Control in Response to Roman Republic History
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Daniel Cotter Essay 12: Necessary and Proper by the U.S. Constitution: The Founders on Limiting Federal Control in Response to Roman Republic History – Guest Essayist: Daniel A. Cotter, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Daniel CotterThose who gathered in Philadelphia in 1787, 235 years ago this May, did not arrive without examples of what worked and what did not work in past empires or republics. With such wisdom, the Founding Fathers made sure the Constitution addressed regime failure. Two of those provisions are the Necessary and Proper Clause and the vesting clause of executive power.
The Necessary and Proper Clause
Article I of the United States Constitution sets forth the Congressional powers. Article I, Section 8, Clause 18 of the Constitution provides:
This clause has been referred to as the “elastic clause” or the “sweeping clause” because the language on its face appears to expand significantly the powers of Congress. The clause has been referred to as the most important provision in the Constitution, for good reason – most federal laws are enacted under this Clause 18.
From the beginning, the clause has been debated. In Federalist No. 33, Alexander Hamilton argued the “virulent invective and petulant declamation against the proposed Constitution” caused in large measure by the Necessary and Proper Clause was misdirected, writing in part:
They are only declaratory of a truth which would have resulted by necessary and unavoidable implication from the very act of constituting a federal government and vesting it with certain specified powers. This is so clear a proposition, that moderation itself can scarcely listen to the railings which have been so copiously vented against this part of the plan, without emotions that disturb its equanimity.
James Madison in Federalist No. 44 reiterated much the same. Anti-federalists expressed concern about the unlimited power the Clause presented. Writing in Anti-federalist No. 32, Brutus wrote: “It is truly incomprehensible. A case cannot be conceived of, which is not included in this power. It is well known that the subject of revenue is the most difficult and extensive in the science of government.” The concern would play out in the Supreme Court over the years, beginning early in the republic.
In 1819, the Court supported the views of the Federalists, in McCulloch v. Maryland, 17 U.S. 316 (1819). Chief Justice John Marshall wrote the opinion, and after explaining the meaning of the clause, echoed the language of Federalist No. 44:
(Emphasis added.)
Vesting Clause
Article II, Section 1 begins: “The executive power shall be vested in a President of the United States.” Known as the “vesting clause,” this clause too has been the subject of debate. With no settled meaning of the term “executive power” at the founding, some have argued that the term refers only to those powers set forth in the Constitution in other provisions. The opponents of the minimalist view assert that the power is expansive, subject only to specific limitations included in the Constitution. The latter view is referred to as the “unitary executive” and many have argued the president has such powers, often the party of the president in the White House asserting he has such powers, but not when the opposing party is inhabiting the White House.
In Federalist Nos. 69 and 70, Hamilton wrote of the need for a singular executive and the powers. In Federalist No. 70, Hamilton wrote in part:
Conclusion
The Constitution’s wisdom is shown in many ways, including with the two provisions covered by this essay. The careful drafting in 1787 has helped to ensure American Exceptionalism.
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Why Have There Been No Military Coups in the United States?
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, William Morrisey, Ph.D. Essay 11: Why Have There Been No Military Coups in the United States? – Guest Essayist: Will Morrisey, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, William Morrisey PhDPlutarch writes of the life of Gaius Marius, the noted Roman general who seized power in the Roman Republic early in the first century B.C., that Marius was no patrician. He was born into the equestrian class—“poor smallholders,” as Plutarch describes them, a family living outside the great city. He rose to prominence on the strength of his own abilities and of his leading virtue, courage. As a young man, he had disdained the liberal arts education which had entered Rome from Greece. After all, were not the Greeks now the slaves of Rome, their education corruptive of the manliness that resists enslavement? A real man evidently needed no Aristotelian moderation, in Marius’ judgment: Plutarch cites Marius’ “harsh and better character,” his “inordinate love of power,” and “insatiable greed,” along with his inveterately superstitious mind, as markers of his rejection of everything urbane and civil. No gentleman he, and proud of it.
A great military strategist and tactician, Marius began his rise to prominence by crushing the Teutones and Ambrones at today’s Aix-en-Provence in 102 B.C. Using paupers and slaves as his soldiers, he next defeated and captured the formidable African monarch, Jugurtha. When the Teutones and the Cimbri joined forces to invade Italy, moving towards Rome, the Romans elected Marius consul, empowering him to repel the enemy. In this war, he proved a superb manipulator of the souls of his men, taking them to battle with appeal to their fear, their courage, their shame, their honor—all, sometimes, in the same speech.
“In a military context,” Plutarch writes, Marius’ “status and power were based on the fact that he was needed, but in political life his preeminence was curtailed, and he took refuge in the goodwill and favor of the masses”—not the patrician senators—and “abandoned any attempt to be the best man in Rome, so long as he could be the most powerful.” To do that, he needed to keep his soldiers satisfied and thereby to maintain his power base. This political necessity mirrored the character of his soul: “He was incapable of just quietly enjoying what he had.” Therefore, when he ran out of foreign wars, he could only turn to civil war. Forced into exile by his even more vicious rival, Lucius Cornelius Sulla, he regrouped his forces and came back, turning the city into a field of blood.
For centuries, Rome had been a proud republic, with elements of monarchy, aristocracy, and democracy mixed in rough balance, with the senate as the balance-wheel. Marius and Sulla overturned that regime temporarily, foreshadowing the end of the republican regime at the hands of the Caesars, several decades later. Military overthrow of republics had occurred many times in Greece as well, and modern history has seen such revolutions in England (Oliver Cromwell), France (Napoleon Bonaparte), Iraq (Saddam Hussein), and many other countries. If there is any truth to the claim of ‘American exceptionalism,’ the absence of any such coup d’état in our own history undoubtedly ranks among the most striking examples of it. The dogs of war have barked no less frequently for Americans than for other nations, but the wolf of military takeover has remained silent. And this, despite the fact that we have seen some twelve U.S. generals elevated to the presidency, beginning with George Washington. Unlike Marius, our military men have been able to become first in peace after having been first in war, without bringing a general’s command-and-control temperament with them. The framers of the Articles of Confederation and the ‘anti-federalist’ opponents of the proposed United States Constitution in the late 1780s had provided for no presidency at all, in large measure to avoid the possibility that an independent executive branch could be seized by a military man, using the equivalent of the Roman consulship as his vehicle.
As students of the Roman regimes, the Framers of the Constitution recognized the need of energy in the executive as much as the Romans did. They also wanted to make their chief executive a defender of republican liberty, not its subverter. Politically ambitious military officers might channel their vigor and courage into peaceful civilian life, including high office, but no more than that. With this intention, the Framers designed the ruling institutions of the new republic in ways that have kept tyrannical souls like those of Marius and Sulla out of the presidency.
Marius could not have risen to power in Rome except by exploiting Rome’s factionalism, the inveterate resentment of the many plebeians for the few patricians. In Federalist 10, Publius famously calls faction the characteristic vice of popular governments. Factions typically center on what he calls the various and unequal distribution of property. The regulation of property has become “the principal task of modern legislation,” since “neither moral nor religious motives” adequately moderate factitious passions. As Rome itself had repeatedly proven, “Enlightened statesmen will not always be at the helm.” One way to control faction and thereby to prevent the tyranny that may arise to eradicate it is by designing the republic’s ruling offices not so much along the lines of a mixed regime, as in Rome, but in accordance with the principle of representation. The people will have a voice, but not directly—only through their elected delegates to the bicameral legislature and, much more indirectly, through the Electoral College to the presidency. The most democratic part of the government, the House of Representatives, will consist of persons who know their constituents but do not need simply to register their desires. Representative government enables officials to deliberate, to “refine and enlarge the public views.” The kind of appeal Marius made to the Romans would find itself quickly diluted among the Americans.
If there is something resembling a ‘mixed-regime republican’ element in the Unites States government, it can be found in that bicameral legislature. Although, as a democratic republic, America doesn’t have a born-to-rule patrician class as in Rome (and indeed as in Europe at the time of the Founding), there is no question that Senate members tend to be wealthier than members of the House. In the thirty-fourth Federalist, Publius examines how this kind of legislature will govern military expenditures. Such expenditures, he writes cannot be limited constitutionally, as it’s impossible to estimate far in advance the cost of wars, “contingencies that must baffle all the efforts of political arithmetic.” As we are not “entirely out of [Europe’s] reach,” and would indeed become less so as naval technology advanced, “to model our political systems upon calculations of lasting tranquility would be to calculate on the weaker springs of the human character.”
Rome exemplified this dilemma, Publius observes. Its liberties “proved the final victory to her military triumphs.” As for modern Europe, its “liberties…as far as they have ever existed, have, with few exceptions, been the price of her military establishments” (Federalist 41). This being so, a standing army “is a dangerous, [and] at the same time that it may be a necessary, provision.” Therefore, “a wise nation will combine all these considerations.”
The federal union, however, “by itself, destroys every pretext for a military establishment which could be dangerous.” Although one or a few states might be easy prey to foreign invaders, “America united,” even without a standing army, “exhibits a more forbidding posture to foreign ambition than America disunited.” “The moment of [the Union’s] dissolution will be the date of a new order of things.” In that event, “the face of America will be but a copy of that of the continent of Europe,” its liberty “crushed between standing armies and perpetual taxes.” Worse still, a disunited America would see foreign powers playing divide and rule on this continent, even as they do in Europe. As I write these lines, this has been exactly the strategy followed by Russia in its several invasions of Ukraine, perhaps with more to come, beyond Ukraine.
The fact that all spending bills must originate in the House—again, the most democratic branch of the democratic republic—will limit such spending nonetheless, as the people have won the battle against taxation without representation. At the same time, the more nearly patrician, or at least richer, Senators, with their longer terms in office, will moderate any impassioned rush into war. Congress as a whole can check and balance ambitious presidents, if only by exercising the power of the purse. Further, Congress must limit its funding, as “the Constitution ties down the legislature to two years as the longest admissible term” for military appropriations.
The Framers built additional constraints into the office of the executive itself. Publius forthrightly observes that “energy in the executive is a leading character in the definition of good government”—a character the Articles of Confederation lacked. “A feeble executive implies a feeble execution of the government,” which is one way of having “a bad government.” This, he continues, is especially true in war, which is why the American president is commander-in-chief of the armed forces. In Federalist 70, Publius pays considerable attention to the executive offices of the Roman republic.
The “ingredients” of executive energy are unity, duration in office, financial support, and competent power.” Safety in the executive depends upon a due dependence upon the people and due responsibility for one’s conduct in office. How did Rome measure up to these standards?
In its frequent wars, Rome “was obliged to take refuge in the absolute power of a single man, under the formidable title of dictator, as well as against the intrigues of ambitious individuals who aspired to tyranny, and the seditions of whole classes of the community whose conduct threatened the existence of all government, as against the invasion of external enemies who menaced the conquest and destruction of Rome.” The dictator had little or no dependence upon the patricians, let alone the people as a whole. And he made sure that he could not be prosecuted for anything he did while dictator.
When it did not suffer under dictatorship, however, Rome had not one but two co-equal executives, the consuls. That is, if something went wrong, each pointed the finger of blame at the other. Responsibility was lacking. This executive dualism might well have led to even more rivalry than it did, except that the patricians were so frequently in conflict with the plebeians at the same time they were faced with foreign wars and invasions. This led the Romans to give one consul authority over foreign policy, the other over domestic policy, keeping the two men distracted from one another. “This expedient must no doubt have had great influence in preventing those collisions and rivalships which might otherwise have embroiled the peace of the republic.”
In the American republic, by contrast, the executive enjoys the unity of a Roman dictatorship along with the powers of commander-in-chief while at the same time being constrained by four-year terms in office and by dependency on Congress for financial support. Publius is well aware that an executive might be tempted to undertake a life of Marius. “Self- love” often causes “the great interests of society [to be] sacrificed to the vanity, to the conceit, to the obstinacy of individuals, who have credit enough to make their passions and their caprices interesting to mankind.” Against this, the Framers designed a regime that frustrates such passions, while recognizing that they will never be extirpated so long as human beings are what they are.
In addition to the institutional structures ordained in the Constitution, one must notice that the way of life in republican Rome differed from that of America. Rome had begun as a military monarchy, then became a military republic. Even in its founding legend, Romulus overpowered Remus and, as Roman historians from Livy to Tacitus testify, it fought its way through the centuries. Because it was so good at pursuing that way of life, its great generals became its principal heroes. More, as those men ranged farther afield in the republic’s extensive empire, their troops became more attached to their generals than to Rome and its republic. A military republic thus encourages not only habits of obedience to one commander but the geopolitical circumstances in which such a regime might easily threaten the civilian-ruled capital.
America’s commercial republic is as extensive as many of the ancient empires, but the American way of life inclines us to think of territory less in terms of military rule than of free trade. From the start, Americans have understood their political union as a vast free-trade zone. Ambitious citizens most often devote their lives and energies to peaceful commercial competition, not military rivalry. The best accounts of the distinction between military and commercial republics remain Montesquieu’s Considerations on the Greatness of the Romans and their Decline and his massive and authoritative The Spirit of the Laws both works well known to the American Founders.
Finally, the purpose of the American republic differs from that of the Romans. The Declaration of Independence maintains that government should aim at securing the safety and happiness of the people. Romans most assuredly sought their own safety, but it wasn’t happiness so much as glory that its leading men prized. War did not only seek them out; they sought it. And so have many rulers and many peoples, before and since—America (mostly) excepted. Our presidents have sometimes conquered for territory—invoking our ‘Manifest Destiny’ to rule from sea to shining sea on this continent—but seldom for fame, which Alexander Hamilton called “the ruling passion of the noblest minds.” Thanks to the Framers’ work, that ruling passion has stayed within the boundaries of reason, along with the men whose minds are ruled by it.
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The Roman Republic: From Aristocracy to Dictatorship
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 10: The Roman Republic: From Aristocracy to Dictatorship – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathRome, the city-state on the Tiber River, like her counterparts in Greece, had no cohesive written constitution. There were the Twelve Tables from around 450 B.C., of which mere fragments remain, which are sometimes presented as the Roman Republic’s constitution. However, the tablets were more an attempt to codify certain principles of criminal and civil law, rather than to lay the foundation for a political system. However, they did begin the practice in Roman law of published codes enacted by a legislative body and accessible to all citizens, which remained a core characteristic of European legal systems influenced by Rome.
Much of Rome’s political constitution by contrast was the product of custom. That custom evolved through responses to changes in the society’s social structure, through the citizens’ tacit acceptance of political bodies that arose from critical events, and by incorporating founding legends. An example of the first was the change in sources of wealth and the nature of the aristocracy comprising the leading families. The second would include the expulsion of Rome’s last king, the Etruscan Tarquin the Proud, at the end of the 6th century B.C. That event resulted immediately in the preeminence of the established aristocratic council, the Senate, and, a half-century later, in the emergence of the assemblies as sources of political influence for the commoners. The last would be the creation of institutions (such as the Senate and the tribunes) and practices said to go back to the 8th century B.C., and the acts of Rome’s first king, the legendary Romulus, and his successor, the Sabine Numa Pompilius.
While the writings of historians such as Livy and Sallust and political leaders such as Cicero are instructive, the single most authoritative source for the Roman constitution is its earliest expositor, the great Greek historian and father of constitutional analysis, Polybius of Megalopolis. Born in 200 B.C., he became a prominent politician in the Achaean League, of which his city was a member. The League, had for some years, had to tread a narrow path in relations with Rome, by then in control of most of Greece. With some exceptions, the leaders of the Greek cities generally were less than thrilled about Roman control. Such lack of enthusiasm raised suspicions and put those politicians in potential danger.
After Rome in 168 B.C. defeated Macedon for the third and final time, the Senate decided to break up that kingdom into four tributary republics. Rome also “went Roman” on the Greeks allied with Macedon, destroying 70 towns in the region of Epirus and selling a reported 150,000 into slavery. Rome’s Greek “allies” fared better but were disciplined for their lack of commitment. Polybius was among the 1000 Achaean leaders suspected of “fence-sitting” who were deported. Most were sent to provincial towns away from Greece.
Polybius was allowed to stay in Rome itself, due to the intervention of two powerful Roman leaders, Scipio Aemilianus and his brother. The developing friendship between Scipio and Polybius gave the latter access to the Roman elite. His learning and gregarious and active personality further solidified those connections. Polybius, in turn, became a committed advocate for the city and its system of government. As well, his favored status gave him extensive freedom to travel. When the Senate authorized the Greeks to return to their cities, Polybius declined. Instead, he eventually accompanied his friend Scipio to North Africa when the latter was given the command of the army sent to destroy Carthage in the Third Punic War. Polybius was well acquainted with Rome, its history, and its institutions, and he wrote about them with affinity.
The Histories is Polybius’s major influential work. It was a massive undertaking of 40 books, although one needs to keep in mind that the physical limitations of papyrus scrolls meant that a “book” might be more like a quite lengthy chapter today, and the entire effort perhaps a couple of thousand pages. The first five books are fully available, with more or less extensive excerpts from many others. Some are entirely lost. Most of the work covers Roman history from the Second Punic War (against Hannibal) to Polybius’s time. Most important to constitutional analysis is Book 6, the numerous preserved fragments of which cover, in the estimate of one authority, about two-thirds of the book. Missing is a thorough analysis of the Roman assemblies, in contrast to his discussion of other elements of the Roman constitution.
The constitution Polybius describes is that of his time, after Rome has finalized its drive for dominance of the Mediterranean world. The Punic Wars lie in the past, Carthage has been eradicated, and the destructive Social Wars and civil wars are in the future. Romans’ confidence in their institutions is high, and the republic which Polybius describes is at its political zenith. As was the habit of classic Greek observers of political systems, Polybius believed in a duality of good and bad forms of government, with an inexorable process of degeneration between those forms. But, unlike, for example, Plato and Aristotle, he claimed to see in the Roman constitution a system resistant to such degeneration. He also observed that states commonly moved through those forms sequentially and even attempted an anthropological explanation for the origins of government. Thus, he argued an archaic form of monarchy emerged when the physically dominant member of a primitive band of humans took command.
As societies become more sophisticated, that archaic form of tribal leadership proves inadequate. A more stable form of kingship emerges, one based on reason and excellence of judgment, which, in turn, fosters consent of the governed. Initially, such kings are elected for life. Eventually, the dynastic impulse of rulers to pass their office from father to son leads to kingship often becoming hereditary. Over time, such dynastic succession induces a sense of superiority and entitlement, which results in formal distinctions and ceremonies to set the royals apart from commoners. Worse, these royals begin to consider themselves exempt from rules and morals. As ordinary people begin to react with disgust at such licentiousness and arrogance, the ruler responds with anger and force. Thus, the inevitable outgrowth of kingship is tyranny.
The wealthy and talented members of respected families chafe at the tyrant’s rule the most. Conspiracies develop and the tyrant is replaced by a ruling class of high-minded men, the aristocracy. Recalling Plato’s criticism of oligarchy, Polybius saw the degeneration as the fault of the sons, not the fathers. As he wrote, the descendants “had no conception of hardship, and just as little of political equality or the right of any citizen to speak his mind, because all their lives they had been surrounded by their fathers’ powers and privileges.” Soon enough, the government controlled by supremely moral and wise men gives way to a self-interested oligarchy “dedicated … to rapaciousness and unscrupulous money-making, or to drinking and the non-stop partying that goes with it ….”
The general populace, encouraged in their passions by manipulative leaders, murders or banishes the oligarchs and itself takes on the responsibilities of government. Democracy, according to Polybius, is based on majority rule, but a majority tempered by “the traditional values of piety towards the gods, care of parents, respect for elders, and obedience to the laws.” This sounds strikingly like the admonition of republicans through the ages, that self-government requires self-restraint, focus on the common good and general welfare, and a strong moral and religious framework to promote republican virtue. John Adams’s observation that the American system was fit only for a moral and religious people is one example particularly relevant to the American experience. The exhortation in the third article of the great North-West Ordinance of 1787, about “Religion, morality, and knowledge being necessary to good government and the happiness of mankind” is another.
Regrettably, such values prove to be in short supply, and the population of the democracy, now encouraged in their delusions by manipulative politicians, believes instead that it has “the right to follow every whim and inclination.” Those ambitious for power and wealth seek to get ahead by corrupting the people with money to obtain their support. The common people become greedy for such largesse, and democratic self-government degenerates into ochlocracy (“mob rule”). As Polybius described the fate of democracy, “For once people had grown accustomed to eating off others’ tables and expected their daily needs to be met, then, when they found someone to champion their cause … they instituted government by force: they banded together and set about murdering, banishing, and redistributing land, until they were reduced to a bestial state and once more gained a monarchic master.” This is the predictable and depressing lifecycle of political systems. Polybius would have nodded knowingly, had he been present at Benjamin Franklin’s reply to his interlocutor about the type of government produced at the Philadelphia Convention, “A republic, Madam; if you can keep it.”
Fortunately, such a cycle of corrupt and degenerate forms of government could be avoided, and Rome showed the way. Polybius exalted Rome as a “mixed” government, composed of essential elements of all taxonomic forms, monarchy, aristocracy, and democracy. Unlike Plato’s fictitious ideal republic, Rome’s was a functioning system which had proved its mettle for centuries. Unlike Aristotle’s description of the Athenian government as a workable, but uneasy, mixture of popular and oligarchic elements in the Assembly on one side and the Council of 500 and other institutions on the other, Rome succeeded because of its more developed balance of powers. In that, according to Polybius, Rome’s constitution resembled that of Sparta, although Rome’s developed by natural evolution rather than from a conscious decision by a wise lawgiver like the mythical Spartan Lycurgus. Polybius regarded Sparta’s system as particularly enlightened and wrote with great favor about it, although he recognized that the structure did not prevent Spartan hubris from engaging in ultimately disastrous foreign military adventures. In light of Sparta’s legal totalitarianism, it is ironic that Polybius ascribed to this mixed government a long history of liberty in Sparta. Perhaps by this he meant independence. In any event, his characterization of mixed government became the classic understanding of what today would be called a system of limited government.
The preeminent political institution of the Roman Republic was the Senate. Although eligibility changed over time as membership was opened up to the more prominent plebeian class, the equites ((knights), the Senate was primarily the institution of Rome’s aristocratic families, the patricians. The body had begun as a council composed of 100 men chosen by Romulus from the leading land-holding families as city fathers (“patres“). Initially, it was solely a hereditary body, but eventually the primary determinant, if one sought admission to the Senate, became landed wealth. The Senate had the power over appropriations. The civil functionaries had to obtain Senate consent for all expenditures, most importantly for the massive funds spent every few years on the repair and construction of public buildings. Major crimes, such as treason, conspiracy, and gang murder were under Senate jurisdiction. Foreign relations, colonial administration, and matters of war and peace were the domain of the Senate.
Striking about the Senate was that it had no formal role except to act as an advisory council, the same as under the earlier monarchy. In reality, it was the single most powerful body in the republic, due to its class ties and consciousness, its continuous sessions, and its life membership. Moreover, the mos maiorum (the “custom of the ancestors”), the powerful force of tradition in the Roman constitution, sustained the legitimacy of the Senate. A senatus consultum was merely an advisory opinion by the Senate, but such an opinion was required for any law proposed for adoption by an assembly. Although a consultum could be overridden by the assembly or could be vetoed by a plebeian tribune, in reality an unfavorable consultum usually spelled the end of the proposed law or, if enacted, caused it not to be enforced by the magistrates. Polybius noted, if one were to look solely at the Senate, one would believe that Rome was an aristocracy. Or, in the more jaundiced view of some historians who claimed that the Senate was actually controlled by a tightly knit small hereditary group of families, it was an oligarchy.
There was also, however, another long tradition in Rome’s constitution, “What touches all must be approved by all.” As Cicero put it in Republic, “res publica, res populi.” The consent of the people was given through the assemblies. Polybius described their role in assessing taxes, the ratification of treaties, actual declaration of war, and confirming the appointment of officials. Moreover, the people had a role in legal processes. All death penalties had to be approved by an assembly. The same held for more general criminal cases where a substantial fine would be imposed. He concluded that, from this perspective, one might declare Rome a democracy.
There were various assemblies over time, and Roman citizens could attend any. Histories does not have much discussion of them. This might be because Polybius was not a great admirer of those bodies or, more simply, because his discussion is in the chapters which have been lost. These explanations are not contradictory, and there is evidence for both. One such body was the Centuriate Assembly, the oldest. It can be traced to a 6th century B.C. king and was modeled on the centuriae, the military units of 100 infantry and 10 cavalry that each of the ten subunits of the three “tribes” of Rome had to provide. As in Athens, these tribes were not based on ethnicity but were simply geographic constituencies within the city.
As the city grew, so did the number of tribes and the size of the voting units. For a long time, there were 193 “centuries.” They were organized on the basis of land ownership, wealth, and age, which, in turn, was related to the type of military service and associated weaponry of the members. At the top were the equites (knights), who were wealthy enough to provide horses and served in the cavalry. They had 18 centuries. Next were 170 centuries for the infantry, divided further into five classes based on their members’ wealth and weaponry. Below them were five centuries for the proletarii (the poor), those who could not supply weapons and typically were assigned to the navy.
In contrast to the Athenian ekklesia, in the Roman system the citizens did not vote simply as individuals. Although they met in the same place, the actual voting took place within their respective centuries. Each century had one vote, determined by the majority vote of citizens assigned to that century. The Assembly’s approval depended on a majority vote of the centuries, not of the undifferentiated citizens. With 193 centuries, the votes of majorities in 97 of those centuries would be required to approve a measure. In fact, voting was heavily skewed in favor of the equites and the wealthiest layer of the others. Between them, they were assigned 98 centuries, on the reasoning that those who provided the most financial support and had the most to lose in military service should have the most influence. Moreover, voting was done in class order, with the centuries of the equites voting first, those of the wealthiest class of others voting next, followed by the next lower group, and so on. The poor voted last. As a result, the vote of the poor rarely mattered. Class solidarity, the number of centuries weighted towards the wealthy, and the staggered voting meant that most issues would be decided well before the smaller landowners or the poor voted. Even the reforms of the 3rd century B.C., which expanded the number of centuries for the landowning classes to 350, had little effect on the dominance of the wealthy.
The Assembly could only consider bills which were on the agenda set by the tribunes or the magistrates. The citizens could vote on the proposal but not debate the bill at issue or offer amendments. Finally, all voting was done in the city of Rome. As the city’s domain spread, it became more difficult for any but wealthy citizens to travel to Rome for the duration of the Assembly’s legislative or appointive tasks. Based on his analysis of the system, the historian Scott Gordon doubts that even one-tenth of the 400,000 Roman male citizens at the end of the 2nd century B.C. attended a voting assembly in their lifetimes. The formal powers of the Assembly eventually were transferred to the Senate by the Emperor Tiberius.
There was, however, one mechanism by which the public could express its views, the contio. After a bill was proposed by a tribune, there had to be a period of at least twenty-four days before the Assembly could vote on it. This allowed for informal discussion among citizens of the bill’s merits. Moreover, any tribune could call for a formal meeting, the contio, which all residents, including women, foreigners, and slaves, could attend. The only speakers permitted were those selected by the presiding tribune and usually were senators or various magistrates. Public comment was limited to shouts and other sounds indicating support or opposition.
The final part of the formally operating civil government were judicial, executive, and administrative officials. Chief among them were those sought by ambitious Romans embarked on the cursus honorum, the “path of honors” along a sequence of offices, the apex of which was the consulship. All were initially open only to those of senatorial rank, but eligibility was expanded in the 4th century B.C. In practice, only scions of the wealthy families were likely to be elected, especially as consul. Thus, Cicero, a non-patrician resident of a non-Roman town in Latium and member of the knightly class, the highest of the plebeian classes, climbed this ladder of success quickly.
Election to these offices was by the Assembly for a one-year term, with minimum age requirements. The lowest office was that of the quaestor, who had to be 30 years old and have completed several years of military service. Quaestors were in charge of financial administration, a source of influence for further political advancement, and of record-keeping for the state archives. Above the quaestor was the aedile, in charge of public facilities and public festivals and celebrations. The next rung in the ladder was the praetor, a multi-function office. Praetors performed judicial functions but also could step into the executive role of consul if both of the consuls were absent from the city. As jurists, praetors had significant influence on the development of the body of Roman law. After his term ended, a praetor could also be awarded a foreign post as propraetor. This included military power, with full governing authority in the province. There was no term limit for that office.
At the end of the cursus honorum beckoned the consulship. The Assembly elected two consuls each year, at least one of whom was usually engaged in military campaigns in the provinces, the consul peregrinus. The one in Rome, the consul urbanus, had no real military function, because armed forces had to be kept some distance from Rome during peacetime, a constitutional limit broken, for example, by Julius Caesar when he crossed the Rubicon River. The consul’s position in the Republic was one of influence, not formal power. Any executive decision could be vetoed by the other consul and any of the ten plebeian tribunes, Moreover, he could not override the actions of other magistrates. However, his status as a member of a leading family and constant interaction with the Senate, plus the fact that he had survived the competition to reach the apex of the cursus honorum gave his opinions and actions great constitutional legitimacy. After his one-year term ended, a consul could not be re-elected for at least ten years, until the general Marius destroyed that informal constitutional limit in the 1st century B.C. After his term, a consul could be elected as proconsul, the highest military and administrative position in the provinces, with no term limits. This usually arose from the extended military campaigns abroad, which necessitated continuity of command.
Finally, outside the formal cursus honorum were the tribuni plebis, ultimately ten in number, who originally represented the “tribes” or sections of the city. Tribunes spoke for the political interests of the plebeians. They were elected to one-year terms by the Assembly. In that capacity, they were responsible to assist any plebeian who had been wronged by a magistrate. This included the power to overrule an unjust judicial order of punishment. The tribunes’ political power extended to vetoing any bills proposed to the Assembly by other magistrates and to consulta of the Senate deemed contrary to the plebeians’ interests. Eventually, they became members of the Senate and set the agenda for that body. While they formally represented the plebeian classes, with some exceptions such as the famous Gracchi brothers, they were no radicals. They were typically drawn from the patricians and the knights, the high-status classes, and shared their interests. As well, their potentially significant power was impeded by the fact that any affirmative act of a tribune could be vetoed by any of his nine colleagues. In reality, tribunes could act as a shield for the commoners against the wealthy, but rarely as an effective sword to advance the interests of the lower classes in opposition to the wealthy.
One additional aspect of the Republic’s constitutional practices bears mention. Every system has to deal with the state of emergency that can arise over time, the most common of which is war, either foreign or civil. For a long time, in such exceptional circumstances the Roman Senate would formally appoint a dictator to rule by decree for six months. That practice was discontinued by the end of the 3rd century B.C. Instead, during later troubles, such as those of the civil wars of the 1st century B.C., such exceptional powers would be authorized under the terms of a senatus consultum ultimum, a “final act of the Senate” needed to protect the Republic.
Polybius saw in the structure of the magistracies, especially in the consuls, the monarchic element that was part of the “balance” in the Republic’s constitution. In the various interactions of Senate, Assembly, and tribunes, and in their mutual formal and practical limitations, he perceived a system of “checks” on the power of any of them. In some of the particulars, he was off the mark. For example, unlike the Spartan kings to which he compared the consuls, the latter served for only one year, not life. Moreover, the consuls lacked the formal powers one normally associates with kingship. On the whole, however, his assessment has merit.
Historians have long debated the causes of the Republic’s demise. There is certainly no reason to limit the matter to one such cause. Among them was the collapse of broadly-distributed land ownership which sustained a “middle class” in an agricultural republic. As the wealthy became more so regardless of the source, they bought up more land. Land was a reflection of one’s status. Indeed, because commercial ventures were formally prohibited for Senators, one needed land to join that body. The demand raised the price of land and the taxes imposed on it. The growth of these large latifundia drove the previous smaller landowners into the city. There, they became part of the urban proletariate and competed for employment with the large and growing number of slaves acquired through foreign conquests and with other foreigners attracted to the increasingly imperial city.
Another cause was the opportunity for power and wealth afforded to successful generals operating as proconsuls in the provinces. With the troops often ill-paid by Rome, local taxes were extracted by these commanders and used to pay the troops directly. Loyalties became redirected from the city to the commander. The republican slogan SPQR (Senatus Populusque Romanus), “the Senate and the People of Rome,” which appeared on the standards of the legions, was supplanted by the reality that, “You take the king’s silver, you become the king’s man.” Especially as those troops were increasingly formed from poor Roman volunteers or foreigners, especially after the military reforms of Gaius Marius around the turn of the 1st century B.C., it became easier for generals to use those professional troops—or threaten to do so—against the city itself and to rule by force. Marius himself, and his erstwhile protégée Sulla, set unfortunate examples.
Perhaps most significant was the fundamental change in the political and social conditions of Rome. Consistent with Polybius’s theory, the societal degeneration about which he had warned as the inevitable result of the democratization of politics and the weakening of the population’s character brought about thereby, in fact occurred a couple of generations after his death. The impoverishment of a large portion of society and the resultant dependency on public largesse for survival, made those citizens susceptible to the slogans and programs of the populares, such as Julius Caesar and other, more dangerous demagogues. The bloody competition among families of the oligarchic upper classes, as shown in the Social Wars and the proscriptions of the military commanders Marius and Sulla, contributed to the chaos which sent the Republic on the path to the monarchy of the Empire.
The same events that brought about that radical social transformation also manifested themselves in the essential incongruity of governing a huge multi-cultural empire through institutions designed for a small city-state on the Tiber River. The notion of “community,” with shared traditions, civic and religious, and an ethic of sacrifice necessary to sustain the civic engagement at the core of real self-government, is eroded in the chaos of ethnic, linguistic, religious, and cultural diversity and the impersonality of large numbers. Had the Roman elite been willing to open up its political institutions and to extend citizenship and formal participation in the political system to all parts of their domain sufficiently and in a timely manner, a republican structure of sorts might have survived. As it was, the city had become an empire in fact well before its political structure changed from Polybius’s republic to Octavian’s monarchy.
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Federalists and Anti-federalists on Classic Roman Thought, Human Nature, and Forming a Successful U.S. Constitution
90 in 90 2022, Ron Meier, 6. Guest Constitutional Scholar Essayists, Blog Essay 9: Federalists and Anti-federalists on Classic Roman Thought, Human Nature, and Forming a Successful U.S. Constitution – Guest Essayist: Ron Meier, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Ron Meier, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesNot all the political leaders in the 13 states were sold on the Constitution presented to the states for ratification in the fall of 1787. It was common under the Articles of Confederation to require unanimous agreement, of the states to changes, made to the Articles. Aware that unanimous agreement on the Constitution was unlikely, the Constitutional Convention delegates decided that the Constitution would require only nine states’ ratification to become effective. Had Las Vegas existed then, the betting would have reflected the more-likely result that the Constitution would not be ratified.
Alexander Hamilton, James Madison, John Jay, and others realized that a marketing and communication campaign had to be waged. They were especially concerned about New York, and proceeded to write a series of 85 essays in New York newspapers to sell the new Constitution to the public. Those essays are known as the Federalist Papers. Those opposed to the new Constitution, known as Anti-federalists, countered with their own essays to disprove the points in each of the Federalist Papers.
The Anti-federalists were as well educated on the history of governmental structures of the past and, in particular, knew that Democratic Republics were unlikely to survive because of their greater trust in the political wisdom and virtue of the common man. The Anti-federalists also were concerned that a “national” government, rather than a stronger Confederation, would quickly erode the Sovereign powers of the individual states. They feared a national government, not unlike the British government they had just relinquished, that would dictate to the states and leave the state governments with few powers, even over more local matters. Although the Tenth Amendment was designed to ensure that the states retained significant powers, to some extent, the Anti-federalist fears have been increasingly realized, especially since the passage of the Seventeenth Amendment when the Senate was effectively made into a second House of Representatives by popular election of the Senators rather than the Senators being “representatives” of the states who sent them to Washington. Since then, Federal mandates have diminished the power of the states to act independently with respect to many otherwise local issues.
The Federalists had a difficult job to sell the Constitution, but their wisdom eventually won the day. Some of the major issues addressed are reflected below.
In Anti-federalist 47, the author writes, “Mr. Adams has traced the constitution of every form of government that ever existed. A republican, or free government, can only exist where the body of the people are virtuous.” All our founders were very familiar with the writings of Cicero and Aristotle regarding individual and community virtue and many Anti-federalists doubted that sufficient civic virtue existed in man to make this new experiment at republican government successful.
“But Hamilton’s notes for his famed five-hour (only) speech to the Convention cite Cicero, as well as Aristotle and Montesquieu, in favor of the Constitution’s proposed mixed government theory, and Madison’s notes, while drafting the Federalist Papers, cite Cicero in addition to Aristotle and Polybius. Hamilton based his foundation of republican government on Cicero’s as that strong, representative government which is most conducive to liberty and resistant to tyranny.”[1]
In Anti-federalist 57, the author notes that “the men most commonly presented to the people as candidates for the offices of representatives include (1) the natural aristocracy, (2) popular demagogues, and (3) the substantial and respectable part of the democracy, a numerous and valuable set of men, who discern and judge well, but from being generally silent in public assemblies are often overlooked. He fears that those elected to the national House of Representatives will be less likely to come from the third category than from the first two categories.”
In Federalist 57, Madison counters this argument saying, “Who are to be the electors of the federal representatives? Not the rich, more than the poor; not the learned, more than the ignorant; not the haughty heirs of distinguished names, more than the humble sons of obscurity and unpropitious fortune. The electors are to be the great body of the people of the United States. They are to be the same who exercise the right in every State of electing the corresponding branch of the legislature of the State. No qualification of wealth, of birth, of religious faith, or of civil profession is permitted to fetter the judgement or disappoint the inclination of the people.” Furthermore, Madison notes that a key restraint to the election of representatives, who are found unworthy after their election, is the requirement in the Constitution that Representatives be elected every two years, allowing constituents to “throw the bums out” quickly.
Separation of powers was an important element of the new Constitution. Anti-federalists weren’t convinced of the validity of the claim that such separation would be effective. But in Federalist 47, Madison observes that “the oracle who is always consulted and cited on this subject (separation of powers) is the celebrated Montesquieu.” Madison then quotes Montesquieu as saying, “There can be no liberty where the legislative and executive powers are united in the same person or body of magistrates, or if the power of judging be not separated from the legislative and executive powers.”
The authors of the Federalist papers used extant facts from foreign governments as well as from the Constitutions and practices of the 13 states to demonstrate that what the Constitution proposed is not so distinct but, in fact, identifies deficiencies in those documents and proposes solutions to correct those deficiencies. Madison, in Federalist 47 examined the Constitutions of each of the states to prove his case that provisions such as separation of powers already existed at the state level; if they existed there, then why would the anti-federalists believe that such a provision wouldn’t work at the national level?
Whether to have one or two bodies in the legislature was a topic of contention in the Convention. The final Constitution proposal was for two bodies, a House and a Senate. In Anti-federalist 63, the authors state, “But they are so formed, that the members of both must generally be the same kind of men, men having similar interests and views, feelings and connections, men of the same grade in society, and who associate on all, occasions. The Senate, from the mode of its appointment, will probably be influenced to support the state governments; and, from its periods of service will produce stability in legislation, while frequent elections may take place in the other branch.”
In Federalist 63, Madison notes that, “history informs us of no long-lived republic which had not a senate.” And, as to an equivalent to the Constitution’s House of Representatives, Madison states that, “in Sparta we meet with the Ephori, and in Rome with the Tribunes; two bodies, small indeed in numbers, but annually ELECTED BY THE WHOLE BODY OF THE PEOPLE, and considered as the REPRESENTATIVES of the people, almost in their PLENIPOTENTIARY capacity,” and “The Tribunes of Rome, who were the representatives of the people, prevailed, it is well known, in almost every contest with the senate for life, and in the end gained the most complete triumph over it.”
Because of the breadth and depth of the Founding Fathers’ understanding of both good and bad governments from ancient to then-current history, their debates in the Constitutional Convention, and in the political pamphlets produced in those days, were robust. The citizens read the Anti-federalist and Federalist arguments and heard both sides’ arguments in the churches and meeting halls in their communities. Because civic virtue was an important part of their formal and informal education in the 18th century, they were able to decide that the strengths of human nature could prevail over its weaknesses and that the experiment the Convention created, had a better than even chance of success.
(1) What the founders learned from Cicero // The Observer (ndsmcobserver.com)
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Human Nature and Forming Good Government: Cautions American Founders Learned from Studying Ancient Political Philosophies
90 in 90 2022, Ron Meier, 6. Guest Constitutional Scholar Essayists, Blog Essay 8: Human Nature and Forming Good Government: Cautions American Founders Learned from Studying Ancient Political Philosophies – Guest Essayist: Ron Meier, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Ron Meier, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesIn our schools over the past century or so, we’ve learned, and quickly forgotten after the test, a little about some of the great philosophers who lived thousands of years ago, the ancient Greek and Roman empires, the Kings of medieval Europe, the pilgrims who landed at Plymouth Rock and Jamestown in the 17th century, and the Renaissance and Enlightenment. Since the early 19th century, academic attention has increasingly shifted to a focus on more utilitarian subjects, particularly STEM over the past half century since the first rockets left the earth’s atmosphere to circle the earth in outer space.
All our Founding Fathers were educated in the early-to-middle 18th century. Some were able to attend the colleges of the day, but most were not so able and were self-taught or homeschooled. Primary and secondary education for all included study of the Bible. Libraries were few until Benjamin Franklin and his Junto Club[1] members started the first public library in the early 18th century. Soon thereafter they started the American Philosophical Society to “promote useful knowledge.”
With so few books and libraries, no internet to provide instantaneous acquisition of virtually any information or knowledge one would like to acquire, no email to communicate with anyone anywhere in the world, no Zoom to interact with experts on any topic, it’s natural to wonder how America’s Founding Fathers could have acquired the knowledge required to write the Preamble to the Declaration of Independence, and later, the United States Constitution. How were they able to create a Constitution, admired around the world, in only three months meeting in the humid city of Philadelphia in a building with no air conditioning?
Whether in a formal school or not, colonial children had to acquire a broad body of knowledge to survive in the largely agrarian, merchant, and shopkeeper society of that time; knowledge of religion, science, literature, art, rhetoric, human nature, and politics were necessary to solve the problems each would encounter in daily life, both individually and in their spiritual and political communities. Few could afford specialization in one body of knowledge as is more common today. We call those few among us today with such a wide-ranging body of knowledge Renaissance Men (and Women).
The Colonies’ most influential authors of the Declaration of Independence and the Constitution included Thomas Jefferson, John Adams, and James Madison.
Thomas Jefferson attended the College of William and Mary where he studied science, philosophy and law. He learned the law from the leading Virginia legal scholar, George Wythe. Acknowledging the importance of education, he later founded the University of Virginia.[2] Jefferson, well-educated in the classics, “argued that the Declaration of Independence rested on the authority of Cicero and Aristotle as well as that of Locke. This is most evidently seen by Jefferson’s altering of Locke’s natural rights formulation of ‘life, liberty and property’ into the famous American creed: ‘life, liberty and the pursuit of happiness’ in the Declaration’s preamble.”[3]
John Adams attended Harvard College, which expressed as its primary purpose “to educate future members of a learned ministry and an effective civil government.” At Harvard, all students took the exact same curriculum with no electives, which included courses in theology, mathematics, and natural science.[4] Adams then studied law with a Massachusetts lawyer, which was how preparation for a career in law was conducted in Colonial America.
“It was upon John Adams that Cicero had the greatest influence among early Americans. The Harvard curriculum had at its core in the colonial grammar schools and colleges the study of the Latin and Greek languages, literatures and antiquities, what some called the “Sacred Classics.” The aims of this learning were to expose students to classical authors from whom they could derive “useful knowledge.” And among these selected Classics in early America Cicero took pride of place in the admiration of many liberally educated men as model authority for diction and style, as orator, lawyer, political theorist, letter writer, and guide to “private and public virtue.”[5]
James Madison, considered the “Father of the Constitution,” attended the College of New Jersey (Princeton). His primary and secondary education included mathematics, geography, modern and classical languages, particularly Latin, and ancient philosophy. At college, he studied classical languages, mathematics, rhetoric, geography, philosophy, Hebrew, and political philosophy under university president John Witherspoon, later a signer of the Declaration of Independence.[6]
Because of their education, focused on the “sacred classics,” as described more fully by Professor Joerg Knipprath in Essay #7, our political authors were well-educated in alternate political philosophies and structures. Even those not-highly-educated citizens of Colonial America, in what might be called the Middle Class today, were reasonably familiar with the political thoughts of the day from their pastors, town-hall meetings, and widely distributed pamphlet writings of the more highly educated Colonists.
All our Founding Fathers accepted the Stoic’s fundamental concept of a universal moral order based on reason and nature, but they rejected the Stoic’s concept of an individual moral order being unrelated to the laws of the political community. They understood the importance of religious faith, which at that time was almost exclusively Protestant Christianity, in the development of moral and civic virtue, the necessary ingredients of good government. They recognized the impossible Stoic vision that man could control his passions, prejudices, and pride by perfecting his reason, ethics, and morality. Civic virtue, not perfection, was expected by the founders. As Madison states in Federalist 51, “If men were angels, no government would be necessary,” and in Federalist 55, Madison says that, “In all very numerous assemblies, of whatever character composed, passion never fails to wrest the scepter from reason.”
In Federalist 6, Alexander Hamilton notes that a basic assumption about people is that “men are ambitious, vindictive, and rapacious.” If that is a valid assumption, then expecting that a divided nation would continually live in harmony is pure folly. It would “disregard the uniform course of human events, and set at defiance the accumulated experience of ages.”
Our Founding Fathers, including those whose debates on the issues, some of which became known through their writings and discussions as Federalists and Antifederalists, were amazingly well-educated in the political philosophies of ancient governments. They were therefore able to identify those components of governmental structure that worked and those components that didn’t work as they met in Philadelphia to construct a new government and provide that government a structure that might survive longer than the Republics of the past. Yet they still recognized that it was to be an experiment, not a proven solution.
(1) formed to “discuss queries on any point of Morals, Politics, or Natural Philosophy [physics])” Franklin’s Philadelphia: The American Philosophical Society (ushistory.org)
(2) Thomas Jefferson Biography, History, and Facts
(3) What the founders learned from Cicero // The Observer (ndsmcobserver.com)
(4) John Adams as a Harvard student, by Richard Alan Ryerson | Harvard Magazine
(5) View of The influence of Cicero on John Adams (unito.it)
(6) The Life of James Madison | Montpelier
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The Stoics and Classic Roman Thought on Human Nature and Good Government
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 7: The Stoics and Classic Roman Thought on Human Nature and Good Government – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathIt has been said that Stoic metaphysics was the state philosophy of ancient Rome. While perhaps an overstatement, the point is well taken. Rome did not achieve the prominence of the Greeks in original philosophy, but there were a number of outstanding expositors who adapted Stoic principles to Roman conditions. Seneca the Younger, a wealthy Roman statesman, dramatist, and tutor to the future emperor Nero; Epictetus, born as a slave, but freed by his wealthy master on reaching adulthood; and Marcus Aurelius, known as the last of the “Five Good Emperors” of Rome, were particularly influential Roman Stoics.
The absorption of the Greek city-states into the Macedonian Kingdom of Philip and his successors in the 4th century B.C. shocked the Greeks’ self-regard. Hellenic culture for centuries had emphasized the special status of citizenship in the polis, and its necessity for achieving eudaimonia, human flourishing. The polis was not just “political” in the modern sense. It was a “community” in all manner, political, yes, but also social, religious, and economic. Aristotle associated such community with a true form of friendship, wherein one acts for the friend’s benefit. Plato and Aristotle both concerned themselves at length with what constitutes such a community that is suitable for a fulfilled life. For Plato, the city was the individual writ large, which formed a key component of his description of the ideal government in his Republic. For Aristotle, politics was an extension of ethics. The moral and the political, the personal and the public, were joined. The teaching and practice of individual virtue (arete—the root word for aristocracy) were necessary for a just society, and a polis operating on that basis created the conditions for individual virtue to flourish. Those outside the polis, be they hermits, bandits, or barbarians, and no matter their wealth or military prowess, could not attain that level of full human development.
The Macedonian occupiers were not much different than the Greeks and, such as Alexander, were hardly ignorant of Greek ideas or unsympathetic to Greek social and political arrangements. Moreover, the Greek poleis did not vanish, and ordinary daily life continued. Still, after unsuccessful attempts to rid themselves of their Macedonian overlords, it became clear that the Greeks were just one group competing with others for influence in a new empire. Politics being a branch of ethics, the ideal for the Greeks had been to do politics “right.” With the Macedonian success, it seemed that the foundation of the entire Greek project had collapsed.
The result was a refocus of the meaning of life from the ultimately outward-looking virtue ethics of Aristotle and the vigorous political atmosphere of the polis. In this psychological confusion and philosophic chaos arose several schools. One, the Skeptics, rejected the idea that either the senses or reason can give an accurate portrayal of reality. Everything is arbitrary and illusionary, truth cannot arise from such illusions, no assertion can claim more intrinsic value than any other, and everything devolves into a matter of relative power: law, right, morality, speech, and art. Such a valueless relativism can expose weaknesses in the assumptions and assertions of metaphysical structures, but its nihilism is self-defeating in that it provides no ethical basis for a stable social order or workable guide for personal excellence.
Another group was the Cynics, who responded to the psychological shock of the collapse of the city-state by rejecting it. The correct life was to understand the illusory and changing nature of civilizational order and withdraw from it. Life must be lived according to the dictates of nature, through reason, freedom, and self-sufficiency. The good life is not a project of study and speculation, but practice (askesis). Live modestly through your own toil so that you may speak freely, unperturbed by the turmoil and illusions around you. One of the most prominent Cynics, Diogenes, allegedly lived in a rain barrel in the Athenian market and survived through gifts and by foraging and begging. Social arrangements and conventions are not necessarily inimical to this quest, but they often hide the way. Thus, it becomes the Cynic’s duty to light the way, as Diogenes sought to do with his lamp, by exposing and ridiculing such conventions. The Cynics saw themselves no longer as citizens of the polis, but as citizens of the world.
While principled, the Cynics’ grim lifestyle in order to “speak truth to power” was not for most. An alternative school was founded by Epicurus in the late 4th century B.C. The Epicureans urged people to focus foremost on themselves to achieve the good life. The gods have turned away from the city, political decisions are made in royal capitals far away, and the only control is what you have over your actions. Thus, obeying rules, laws, and customs is practically useful but should not be a matter of concern. To live the good life was to obtain pleasure, the highest end. “Pleasure” is not to be understood as we often do as some form of sensory stimulation. Rather, it was to achieve a state of tranquility (ataraxia) and absence of pain. This ultimate form of happiness would come through a life of domestic comfort, learning about the world around us, and limiting one’s desires. Crucially, Epicureans avoided the turbulence of politics, because such pursuits would conflict with the goal of achieving peace of mind. The best one could hope for in this life was good health, good food, and good friends.
Stoic philosophy was an eclectic approach, which borrowed from Plato, Aristotle, and competing contemporary investigations of ethics and epistemology. Its name came from a school established by Zeno, a native of Citium on Cyprus, who began teaching in Athens around 300 B.C. The “school” met on a covered colonnaded walkway, the stoa poikile, near the marketplace of Athens. Its 500 years of influence are usually divided into three eras (Early, Middle, and Late), which eras broadly correspond to changes from the austere fundamentalist teachings of its ascetic founder into a practical system of ethics accessible to more than wise and self-abnegating sages.
There were two key aspects to Stoicism. First, at an individual level, there was apatheia. It would be massively misleading to equate this with our term “apathy.” Apathy is negative, conveying passivity or indifference. Apatheia means a conscious effort to achieve a state of mind freed from the disturbance of the passions and instincts. It is equanimity in the face of life’s challenges. The Stoic sage would “suffer the slings and arrows of outrageous fortune” over which he has no control and focus instead on his own actions. Reason being man’s distinctive and most highly evolved innate feature, the Stoic must train himself to live life in accordance with nature and reason. He must control his passions and avoid luxuries and material distractions that would lead to disappointments and frustrations. His happiness is within himself. The virtuous life is a simple life, achieved through constant discipline “in accordance with rational insight into man’s essential nature.”
Second was universalism. Hellenic culture became Hellenistic culture, as Greek ideas and practices were adapted to the new world order, as the polis became the cosmopolis. A Stoic saw himself in two ways. In the political realm, he was a citizen of his city or state; in his self, he was a human. As Marcus Aurelius expressed it, “My city and country, so far as I am Antoninus [a title for emperor—ed.], is Rome, but so far as I am a man, it is the world.” Stoicism, unlike its Platonic and Aristotelian sources insisted that the universe was governed by law which applied equally to all and raised all to equal status, a “universal brotherhood of man.” This revolutionary claim would profoundly influence Roman and Christian ideas thereafter.
Stoicism differed from Skepticism in that it rejected the latter’s nihilistic pessimism that life was simply a competition for power. It projected a vision of personal improvement and sought to construct a positive path towards happiness within a universal order of moral truth. It differed from the Cynics in that Stoicism did not reject the basic legitimacy of the state and its laws and conventions or urge withdrawal from the public sphere. Rather, the Stoics separated the universal moral order, by which each person’s individual conduct must be measured, from the reality of the political world and the obligation to obey the laws of the community. Stoics did not reject the secular authority or make a point to ridicule it. From a Christian perspective, it was not exactly “Render unto Caesar the things that are Caesar’s, and unto God the things that are God’s.” But it was close enough, coming from a pagan philosophy.
Finally, the Stoics differed from the Epicureans. The latter’s goal of a tranquil private life through the pursuit of health, learning, good food, and good company was at odds with the former’s demands of a more disciplined private life of constant self-reflection and self-improvement, plus the continuing duty to shoulder one’s obligations under the civic law. Those differences made Stoicism much more attractive than Epicureanism to the average Roman. The Roman upper classes might well be drawn to the Epicurean vision, but Stoicism could appeal to more than the leisure class. Most significant, with its emphasis on self-reliance, simplicity, and service, Stoicism more closely reflected the Roman sense of self during a half-millennium of the Republic and the early Empire. The historian Will Durant observed, “A civilization is born stoic and dies epicurean.” By that he meant that civilizations degenerate. As he explained, “[C]ivilizations begin with religion and stoicism; they end with skepticism and unbelief, and the undisciplined pursuit of individual pleasure.” Though at times turbulent and seeming to veer into dissolution as the political edifice of the Roman Republic became Octavian’s principate, the Roman culture did not yet fundamentally change, due in part to the stability provided by Stoic philosophy.
Stoicism fit well the Roman character imagined by the Romans themselves and reflected in their laws and history. As the historian J.S. McClelland wrote, “The Greeks might be very good at talking about the connection between good character and good government, but the Romans did not have to bother much about talking about it because they were its living proof.” Not unlike Sparta, Rome had always had a strong martial component to its policies, which Romans took to be an essential part of their character. It was a masculine, male-dominated culture, and unabashedly so. At the root of virtus, that is, virtue or excellence, is vir, the word for adult male or hero. Stoicism “spoke” to Romans in a way that Epicureanism could not. That said, the Middle and Late Stoic writers from the second century B.C. on were willing to refine some of the school’s rough homespun aspects and accepted that a materially good life was not inconsistent with Stoicism. Self-discipline and self-reflection were key. Moderation, not excess, all in accord with nature and reason, sufficed. Self-deprivation and the ascetic life were not necessary.
American polemicists of the post-Revolutionary War period often associated the Stoic virtues with the Roman Republic and saw those virtues reflected in themselves. This required turning a blind eye to certain fundamental assumptions. For example, as noted, Stoicism separated the universal moral order’s control over private conduct from the need for unquestioning adherence to the state’s laws made for the welfare of the community. For the Americans, a distinction between private morality and virtue on the one hand, and public morality and law on the other was not readily conceivable, at least as an idea. Though at times John Adams was quite doubtful about the capacity of Americans for self-government, in his message to the Massachusetts militia in 1798 he wrote, “Our Constitution was made only for a moral and religious People. It is wholly inadequate to the government of any other.” James Madison writing in The Federalist, No. 55, noted that republican self-government more so than any other form requires sufficient virtue among the people.
There was another, profound, appeal Stoicism had for the Romans, which connected to their views of good government. Rome prided itself on its balanced republican government, a government meant for a cohesive community, that is, a city-state. “The Eternal City,” the poet Tibullus called it in the 1st century B.C., and so it became commonly known through the works of Virgil and Ovid during the reign of Octavian, long after it had ceased to be a mere city on the Tiber and become an empire in all but name. Indeed, Octavian styled himself princeps senatus, the highest ranked senator, avoided monarchical titles and insignia, and purported to “restore” the Roman Republic in 27 B.C. The trappings of the republican system were maintained, some for centuries.
As in the earlier Greek city-states, Roman citizens had the right and the duty to participate in their governance. Stoicism called on its adherents to involve themselves in res publica, public affairs, working for the benefit of the whole, not themselves, a commitment of personal sacrifice and service. This mirrored basic obligations of Roman citizenship, from military service to political engagement to contribution for public works. These burdens with their physical and economic sacrifices were to be borne with equanimity. Marcus Aurelius, the last great Stoic sage, spent a large portion of his reign on the frontier leading armies against invading German tribes. It is said that he wrote his famous inward-directed Meditations on Stoic ideas and practice during those campaigns.
An important component of the Roman political system was law, both as a collection of concrete commands and as an idea. As noted, Romans were not, by and large, known for original contributions to Western philosophy. For them, that was the role of the Greeks. They were, however, exceptional jurists. As they gained territory, the need to administer that territory required a system of law capable of adapting to foreign conditions. As they gained dominion over cultures beyond the Italian peninsula, and as Roman trade ventured to even farther corners of the world, the Roman law might differ in particulars from that of the local population. At the same time, there appeared to be certain commonalities to the Roman law and those of disparate communities. For the politicians, such commonalities could help unify the realm through a “common law” and support the legitimacy of Rome and its administrators. For the merchants, it could help make commercial dealings more predictable and lower their transaction costs. For the jurists, it raised the possibility of universal influences or elements in the concept of law itself.
The Stoics provided the framework for systematic exploration of that possibility. Stoicism, it may be recalled, had a cosmopolitan, indeed universal, outlook. The Stoic universe was an orderly place, governed by immutable, eternal, constant principles. In other words, an eternal law. At the center was the universal moral law. Law in general had its basis in nature, not in the arbitrary creative will of a human ruler or the cacophony of mutually cancelling irrationalities of the multitude. Humans have an inborn notion of right and wrong. Unlike Adam Smith’s theory of moral sentiments, which he based on our social nature, the Stoics ascribed this to our essential human nature, with each individual participating in this universal moral order. There was an essential equality to Stoicism that eliminated the lines between ruler and subject, man and woman, freeman and slave. Gone was Aristotle’s attempt to explain slavery with the claim that the nature of some conduced them to slavery.
Of course, this only applied to one’s ability to achieve individual virtue through Stoic self-discipline in the personal realm. The outside world still maintained those distinctions in positive law. Many were slaves in Rome. While the Stoics could consider slaves their brethren as members of the human community within the moral law, they accepted the separate obligation imposed on them to obey the political world in its flawed, but real, condition. Epictetus, himself a former slave, blurred that duality when he declared slavery laws the laws of the dead, a crime. But for most, the reality of despotic and corrupt government, the suppression of freedom, and prevalence of slavery were the actions of others over which the Stoic had no control and the consequences of which he had to deal with as best he could through apatheia.
Still, the concept of eternal law, possessed of inherent rightness, and connected to human nature, had some profound implications for human governance and freedom. The universal order is right reason itself and exists within our nature, accessible to us through our own reason. The Apostle Paul addressed this from a Christian perspective in Romans 2:14 and 15: “For when the Gentiles who do not have the law, by nature observe the prescriptions of the law, they are a law for themselves even though they do not have the law. They show that the demands of the law are written on their hearts ….” Proper human law, in its essential principles, is a practical reflection of this higher moral law and necessary for good government. Despite the shortcomings of actual Roman politics, this set a standard.
Because the moral law is universal, eternal and beyond the control of human rulers, it implies a lawgiver of similar qualities. The character of the Stoic “god” was often unclear and differed among various Stoic philosophers. It was certainly not the gods of the Greek and Roman civic religions, with their all-too-human character failings and pathological urges to interfere, usually disastrously, in human lives. Nor was it the personal and loving Christian God of the Gospels, cognizant of each creature within His creation and particularly interested in the flourishing of those created in His image. Rather, the Stoic god is best viewed as a force which created and through its presence maintained the universal order. This force has been described variously as a creative fire, world soul, pneuma (breath), or logos (word). The last two are particularly interesting in relation to Christian writings. Logos not only meant “word” but also the reason, cause, or ultimate purpose or principle of something. The Stoic moral order was an expression of divine reason and accessible to us through the reason that is part of our nature.
One of the foremost Roman commentators and synthesizers of Stoic doctrine in law was Cicero, the great lawyer, philosopher, and statesman. Cicero claimed he was not a Stoic. He seemed to have seen himself as a follower of contemporary versions of Plato’s ideas. Indeed, his two major works on good government, The Republic and Laws, paralleled the titles of Plato’s major works on politics. However, his introduction of the ius naturale (natural law) to Roman jurisprudence, a fundamental step in human freedom, owes much to the Stoics. Note his justification for the right of self-defense: “This, therefore, is a law, O judges, not written, but born with us, which we have not learnt, or received by tradition, or read, but which we have taken and sucked in and imbibed from nature herself; a law which we were not taught, but to which we were made, which we were not trained in, but which is ingrained in us ….”
Or consider the following that vice and virtue are natural, not mere artifices: “[In] fact we can perceive the difference between good laws and bad by referring them to no other standard than Nature: indeed, it is not merely Justice and Injustice which are distinguished by Nature, but also and without exception things which are honorable and dishonorable. For since an intelligence common to us all makes things known to us and formulates them in our minds, honorable actions are ascribed by us to virtue, and dishonorable actions to vice; and only a madman would conclude that these judgments are matters of opinion, and not fixed by Nature.”
Perhaps most famous is this passage from The Republic: “True law is right reason in agreement with nature; it is of universal application, unchanging and everlasting; … It is a sin to try to alter this law, nor is it allowable to attempt to repeal any part of it, and it is impossible to abolish it entirely. We cannot be freed from its obligations by senate or people, and we need not look outside ourselves for an expounder or interpreter of it. And there will not be different laws at Rome and at Athens, or different laws now and in the future, but one eternal and unchangeable law will be valid for all nations and all times, and there will be one master and ruler, that is, God, [note the use of the singular, not the plural associated with the Roman pantheon—ed.] over us all, for he is the author of this law, its promulgator, and its enforcing judge. Whoever is disobedient is fleeing from himself and denying his human nature, and by reason of this very fact he will suffer the worst penalties, even if he escapes what is commonly considered punishment.”
From these recognitions, it is but a short step “self-evident [truths], that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.” A short step conceptually, but centuries in time to realize fully.
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How Greek and Roman Political Structures Informed the Architecture of the American Constitution and Government
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 6: How Greek and Roman Political Structures Informed the Architecture of the American Constitution and Government – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerIn the previous essay, we discussed how classical history (i.e., the history of Greek and Roman political structures) informed the debates over the Constitution—and how James Madison drew on history to make the case for the Constitution’s immediate necessity and importance.
In this essay, we focus again on Federalist #38, but this time discussing how the same examination of historic political structures informed the architecture or structure of the U.S. Constitution itself.
Madison and most, if not all, of the other founders were students of classical history, and well-understood how governance had changed through the ancient Mediterranean societies. They learned how Athenians’ political choices compared and contrasted with those of the Spartans and Minoans, and how the Roman Republic came into existence, but eventually turned into an imperial tyranny.
When reviewing these governments, which ranged from benign monarchies to democracies to despotic autocracies, the founders came to a stunning conclusion: that these historic examples pointed to the necessity of a balancing of powers and interests. Concentrate too much power in one person or one body, and that power could become corrupted as happened in Rome as respect for the rule of law degenerated over time, giving rise to the imperial dictatorship. Rely too much on pure democracy, and it could descend into the rule of the mob, something equally feared.
As Benjamin Franklin is alleged to have said, “Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote.”
The statement is a truism (regardless of whether it was Franklin who said it first!), reflected, in turn, in how the architects of the Constitution ultimately designed our federal government. Our system is one that is rooted in the principles of democratic governance—we elect our legislators and cast votes in a presidential electoral system.
But in order to stave off the possibility of “mobocracy,” those democratic ideals are balanced with republican limitations—from a Bill of Rights which underscores limitations on how government exercises its power, to the idea that each branch of our federal government has its powers specifically enumerated.
Consider, for example, the voicing of unpopular ideas—a subject hotly debated today. There are some, there have always been some, who would like to see unpopular speech outlawed or severely restricted, whether it is so-called “hate speech” or speech that is sharply critical of America, to the point of the burning of a flag. In a pure, Athenian-style democracy, the majority declaring this speech outlawed would be it—the “mob” would have spoken.
But our Constitution recognizes that it is unpopular speech that requires the greatest amount of protection; popular speech requires no protection, after all. So, regardless of what the majority of citizens might demand, and regardless of what the Congress might enact, or the Executive Branch attempts to pursue through the administrative process, the First Amendment presents a counterbalance to a majoritarian tyranny.
It is that explicit assignment of powers, and the careful balancing of those powers against one another, that serves to protect the rights of individual Americans.
In Article I, Section 8 of the Constitution, the legislative powers of Congress are laid out. In Article II, the Executive Branch is given the power to interpret and carry out the laws Congress has passed. Under Article III, the Judicial Branch enforces those laws and ensures that both the laws that have been passed and the interpretation and administration of those laws by the Executive Branch withstand constitutional scrutiny.
In theory, this is supposed to ensure that no branch is more powerful than any other branch—and that the creation and administration of federal policies does not injure or harm the individual rights of American citizens.
In theory.
The ongoing concern is similar to that which brought the aforementioned descent of ancient Rome from republic to dictatorial empire—an increasing disrespect for the regular order of governmental processes and the overall rule of law. In Rome, as chaos and corruption grew, first Julius Caesar and then Augustus offered Romans greater safety and security in exchange for their democratic political rights. The result was the end to any real sort of Roman republic and centuries of despotism.
Again, it was Benjamin Franklin who warned, “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither Liberty nor Safety.”
In modern America, we see this playing out in a myriad of ways—from those who seek to simply circumvent the Constitution’s rules to those who use Congress’ political propensity to pass vaguely defined pieces of legislation as a pretext to increase the power of the federal Executive Branch.
Because of the manner in which power is distributed and balanced, if Congress passes a piece of legislation in which the subject-matter is vaguely defined, the Executive Branch can, in turn, define it. The result is a situation in which, while the Executive Branch isn’t creating law out of “whole cloth,” the power of the Executive Branch is expanded.
Take the Clean Water Act of 1972, a piece of legislation with the noble purpose of dealing with America’s polluted waterways of the 1970s—rivers were, literally, catching on fire! In it, Congress declared that we cannot “pollute” a “navigable water of the United States.”
But Congress didn’t define “pollution,” didn’t define “navigable,” didn’t define “water of the United States”—and for a half-century, all of those terms have been subjected to intense debate as various presidential administrations have offered a varying degree of definitions, some focusing on the plain-language of the act, but others which seem to encircle not just America’s major rivers but even disparate and unconnected bodies of water, or even patches of dry land, that would otherwise have been under the regulatory purview of state and local governments (the definition of “Waters of the United States” or “WOTUS” is once again under debate in Washington).
In the end, this balancing of interests is supposed to protect the population at large to prevent the kind of overreach we have been discussing and to also ensure that we “look before we leap” in terms of public policy solutions. This is especially true when it comes to foreign policy.
The President is Commander-in-Chief of the U.S. armed forces and the military operates under the auspices of the federal Executive Branch. But it is only Congress that can declare war. The President, and his duly-designated officers, have the power to negotiate treaties, but it is within the power of the Senate to ratify them. Moreover, despite the power of the President and the Executive Branch to respond to national emergencies and international crises, and setting aside the legitimacy of the War Powers Resolution which asks the President to report on such actions within 48 hours of them being undertaken, Congress retains the power of the “purse strings” i.e., the power to actually fund the operations of the U.S. government, so the Executive Branch is further restrained.
In all, taking a cue from the governments of the Greek city-states as well as ancient Rome, the founders knew that there had to be a greater division of powers and balancing of interests, that good democratic principles have to be checked by the limitations that a republican form of government provides. When it works, this balance serves to protect the rights of individual Americans.
But we have to make sure that all of the branches are working properly, lest the American experiment become a cautionary tale that scholars two millennia from now examine as an example of what not to do.
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How the Flaws in Classical Governance Informed Debates Over the American Constitution
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Andrew Langer, Blog Essay 5: How the Flaws in Classical Governance Informed Debates Over the American Constitution – Guest Essayist: Andrew Langer, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Andrew LangerIn his play, The Tempest, William Shakespeare wrote, “What’s past is prologue.” Building on this idea, in 1905, philosopher George Santayana wrote, “Those who cannot remember the past are condemned to repeat it.”
Our founders were acutely aware of this concept—even if they were unfamiliar with Shakespeare or preceded Santayana by more than a century. Firmly grounded in both the history of classical antiquity and the philosophies underpinning the various Greek and Roman societies, men like Thomas Jefferson and James Madison relied firmly on what they had learned as they were envisioning the American Republic (and, to be certain, Jefferson found great inspiration from the Greeks and the Romans in his architectural pursuits as well).
Nowhere is this more evident than in Federalist #38. Written by Madison, this essay continues his efforts to counter the rhetoric of those opposed to the ratification of the Constitution—focusing squarely on the flaws in those opponents’ reasoning, and drawing on the lessons of history in order to sway support in favor of ratification.
After briefly discussing the Minoans, the Spartans, and the Romans, Madison focuses on Athens—the cradle of early democracies (the word “democracy” is in and of itself Greek, meaning “ruled by the people”). After discussing some of what led to the formation of the Athenian democratic government, he asks by the people of Athens,
In other words, there was concern as to whether one person—whether a “divine right” monarch or someone selected through a democratic process—would serve the nation (though in the case of the Greeks we’re generally talking about “city states” better than some group of citizens, acting together to make decisions.
In fact, Athens made participation in their democracy mandatory, and each year a group of citizens would be compelled to serve in the government.
Madison then goes on to talk about the challenges that the founders of these governments faced, showing that there is indeed a lesson in the debates that existed in Greece and Rome for those debating the ratification of the Constitution:
In other words—these men faced challenges, too, but those challenges did not prevent them from moving forward with improvements. But most important is the lesson that correcting the mistakes of governance in the past is an essential element of a successful and enduring nation, while at the same time recognizing that opposition for opposition’s sake can be needlessly complicating:
This is the real focus of Madison’s essay—his accusation to the critics of the Constitution that their arguments are not in any way constructive or substantive, but worse, that they are (in many cases) contradictory and harmful in that they are needlessly delaying the lawful formation of a national government.
The Constitution was meant as a necessary improvement over the Articles of Confederation, a document that, like many implemented first drafts, was found to be wanting and ultimately unworkable. It was a document full of contradictions—a central government given responsibilities but little authority to exercise those responsibilities. In fact, it could be said that this is by design, that these flaws were embedded in the Articles of Confederation to make that document (and any government trying to operate under it) unworkable (in modern legal parlance, this is referred to as a “poison pill”).
But Madison knew time was of the essence—and that pointing out the contradictions in the arguments of the Constitution’s opponents was essential to the speedy adoption of that document, framing it as a mortal health issue:
Sometimes, we forget the precarious nature of the fledgling American republic. Yes, we had just won the war for our independence, but the nation’s future was hardly guaranteed. In fact, it was even more precarious because of the failure of the Articles of Confederation in producing the balancing of interests between the states, the central government, and the people themselves.
Ultimately, Madison prevailed upon the readers of his essays to consider that as flawed as the Constitution might be, it was better than either of the two alternatives (as he saw them): the Articles of Confederation or no organizing document whatsoever. Whichever the particular complaints of the Constitution’s opponents, Madison needed them to see that point. With the past being prologue, Madison knew what would happen to the American experiment otherwise.
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Constitutions of Athens, Sparta, and Elements American Founders Changed to Form an Effective, Stable Government
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Joerg W. Knipprath Essay 4: Constitutions of Athens, Sparta, and Elements American Founders Changed to Form an Effective, Stable Government – Guest Essayist: Joerg Knipprath, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Joerg W. KnipprathIn classical studies and terminology, a (political) constitution is a concept that describes how a particular political system operates. It is a descriptive term and refers to actual political entities. It is, therefore, unlike what Americans are accustomed to hearing when that term is used. Rather, we think of The Constitution, a formal founding document which not only describes the skeleton of our political system, but has also attained the status of a normative standard for what is intrinsically proper political action. Thus, we can talk about constitutional law and of rights recognized in that document in defining not just how things are done, but how they ought to be done.
In that, our Constitution is unusual. The ancient Greek cities lacked such formal documents that were self-consciously founding a new political order. However, there were analogous decrees and laws which shaped aspects of government. In that sense, we, too, might say that a statute that organizes a branch of government might be “constitutional,” not in the sense that it is somehow a noble law, and not just that it is within the textual limits of the Constitution. Instead, the term conveys that such a law simply sets up basic procedures to run the government, procedures that people use and, thereby, at least tacitly accept as legitimate. An example might be a statute that establishes a specific system of federal courts.
Moreover, functional descriptions of constitutions must take into account not only formal written rules of government for that entity, but the unwritten customs and practices that shape, refine, or even negate those written rules. Even our formal written Constitution is subject to such informal influences, one prominent form of which is the collection of opinions of Supreme Court justices on the meaning of the words in that document. The ancients, too, were keenly aware of the importance of such long-adhered-to customs to influence the practice of politics and also to give—or deny—legitimacy to political actions. The Greek playwright Sophocles made the clash between a novel royal decree and custom in the form of the “immortal unrecorded laws of God” a central plot device in his play Antigone, a part of the tragic Oedipus Cycle. For the Roman Republic and the early Empire, one must look to the use of constitutional custom through the mos maiorum (the “custom of the ancients” or “practice of the forefathers”) to understand the political order.
As with our own polity, it would be foolish to describe the constitutions of the Greek poleis (city states) as unchanged over the centuries of their existence. Cultural perspectives and societal needs do not remain static. Thus, one must give an evolutionary overview, made more specific through a snapshot of a particular period. When Aristotle (or his students) wrote Athenaion Politeia (the Athenian Constitution), he did just that, providing a history and a contemporary description. As an aside, Aristotle is credited with analyzing 158 Greek constitutions, of which the Athenian is the only one to survive in substantial form. With that number, it is more likely that Aristotle’s students compiled these surveys, perhaps on behalf of their teacher’s research.
As the Greek city states evolved, so did their governments. The chieftain or kingly form of government under a basileus, limited often by powerful individual noble warriors, prominent in Homer’s Iliad, typically gave way to an aristocracy based on land ownership. In Athens, as later in Rome and in the history of Europe and North America, there were further pressures towards democratization, influenced by the growth of commerce and sea trade. Both Plato in Politeia (the “Republic”) and Aristotle in Politika (the “Politics”) wrote about these trends. Neither was a fan. Plato, especially, saw these developments as evidence of degeneration.
While much of this history is murky and in shadows, apparently the major power of government in early Athens was in the Areopagus, a council of aristocratic elders with legislative and judicial powers. Significant constitutional changes in Athens began in 621-620 B.C. with the Code of Draco (who may have been an individual or a signifier for a priestly class), which solidified the powers of the holders of large estates in a legislative Council of 400. This body was selected by lot from the class of those who, according to the Code, could supply a certain level of military equipment.
Solon, regarded by many historians as the founder of Athenian democracy, undertook various political reforms in the early 6th century B.C. One was to deprive the Areopagus of much of its judicial power. Instead, jury courts took over that role, including the ability to adjudicate suits against public officials for unjust treatment. The most significant reform was to expand political participation based on size of land ownership. Four classes were created. All, even the landless laborers could take part in the ekklesia (assembly) and the jury courts. However, only the top two classes could hold the significant public offices. Members of the third class could hold minor administrative positions. In effect, this diminished the role of the hereditary aristocracy and entrenched the wealthier oligarchy of large landowners. The Council of 400 controlled the agenda of the assembly, thereby ensuring more control by the landed elite.
The process of democratization continued with the reforms by the military leader Kleisthenes who came to political power in 507 B.C. He organized the citizens in Athens and the surrounding area into ten “tribes.” While Athens had many residents from other Greek cities and from non-Greek areas, these “metics” were not counted. Tribe is not to be understood as an ethnic concept, but merely as a convenient label for a geographic constituency, such as a community or district. Kleisthenes eliminated the Council of 400 and replaced it with the boule, a Council of 500. Each tribe would have 50 seats in that council, chosen annually by lot from male citizens over 30 years old. The Council was a powerful entity, in charge of fiscal administration. It also set the agenda for the Assembly. Council members could serve only twice in their lifetimes. Kleisthenes had his reforms approved by vote of the Assembly, which gave particular legitimacy to the rules and increased the Assembly’s constitutional significance. However, the nine archons, the senior civil officials, as well as other magistrate offices, such as judges, were still drawn from the nobility and the wealthy landowners.
During the 5th century B.C., further reforms occurred under Ephialtes and Pericles, resulting in what historians often call Athens’s “Golden Age of Pericles.” The Assembly was the focal point of Athenian democracy. It met on a hill near the central market. Sessions were held on four non-consecutive days each Athenian month. There were ten months, with thirty-six days each. A quorum was 6,000 of the estimated 40,000 Athenian male citizens. Anyone could speak on items placed before the Assembly by the Council. Laws generally were adopted by majority vote of hands, though some laws required approval also by a special body drawn by lot from the jury rolls.
This façade of radical democracy must not fool casual observers of Athenian politics. First, there was the matter of demographics. Of the estimated 300,000 residents of Athens and its environs, most were slaves, metics, women, or children. It is estimated that only about 15% were adult male citizens. Second, the members of the Assembly did have final authority to vote, but on proposals shaped by the Council. Finally, business could not have been carried on if thousands of people exercised their right to speak. Thus, informal customs were observed. Speeches on proposals were given by a small number of recognized leading members of the community. These speakers were the “demagogues” (demos means “people”; gogos means “leader”). Initially, the term had a neutral meaning. It soon took on the modern sense, as various individuals sought to gain favor and influence with the voters through inflammatory language, theatrics and emotionalism.
As happens not infrequently, many such spokesmen for the people were from noble families or wealthy businessmen seeking to advance their economic interests. Notorious among them were Alcibiades, known for his charm, wealth, good looks, and Spartan military training; Hyperbolus, namesake of a word that represents theatrical and emotional language, a frequent target of satire by Greek playwrights, and the last person to be “ostracized” (that is, required to leave Athens for ten years); and Cleon, a man who, centuries before William F. Buckley, declared that “states are better governed by the man in the streets than by intellectuals …who… want to appear wiser than the laws…and…often bring ruin on their country.” Such speakers could “demagogue” issues and exploit, exacerbate, and even create divisions within the Athenian populace. However, they also served a useful role in that they were usually well-informed and regular participants in the debates. They could explain to the more casual attendees unfamiliar with the intricacies of Athenian government and politics the issues of the day. It is reported that ordinary Athenians, not known to be reticent in matters of political debate, were anything but shy about vocalizing their opinions about the various speakers through shouts, jeers, cheers, laughter, and a multitude of other sounds even if they did not make speeches.
As noted, the Assembly’s power was not unrestricted. The Council of 500 controlled its agenda. More precisely, since a body of five hundred could not realistically expect to control the shaping of public policy and its administration, it was a standing committee of the Council that performed this work. The standing committee of 50 rotated monthly among the ten tribes which composed the Council.
Athens had no king or president. The archons were senior magistrates and judges. They were selected by lot and, in theory, by the 4th century B.C., any male citizen was eligible for the office. Archons served for one year and thereafter could not be re-selected. Strategoi were the military commanders of the army and navy. Since those positions required particular expertise in war and leadership capabilities, they were not selected by the chancy method of the lot. Rather, the Assembly elected them for one-year terms. Unlike the civil magistrates, because wars operate on their own timetable, military commanders were typically re-elected. At the same time, the Assembly could revoke their commands at any time and for any reason. In addition, Athens had many junior bureaucrats who held their offices longer.
By the end of the fifth century B.C., the jury courts, well-established in the litigious Athenian society, had also taken on a political role. They were in charge of the confirmation process that each official had to undergo before taking office. If challenged on his qualifications, a jury would have to vote by majority to approve the selection. The courts and the Assembly also could hear “denunciations” brought by Athenian citizens against public officials and military commanders after an initial review by the Council. Finally, upon completing his term of office, a public official was subject to a review (euthenai) by an administrative board. If a citizen brought a complaint of mistreatment by the official, that complaint also would be heard by the courts after an initial review by a committee of the Council.
Despite its source in the demos, the Athenian system was not an unrestrained democracy. Such a system would have collapsed quickly, given the size and complexity of the Athenian state by the 6th century B.C. Athens was a “mixed” government (mikte). What brought it to eventual collapse was defeat in the Peloponnesian War at the hands of Sparta, the overextension of its colonial reach, the interference by foreign powers during the 5th and 4th centuries B.C. in the politics of Athens (from Persia to Sparta to Thebes to Macedon), and the usual interest group conflicts that plague societies (rich versus poor, landed versus commercial interests, creditors versus debtors, new elites versus old, traditionalists versus modernists). The social frictions and political instability caused by the violence of the successive factions that controlled Athens in the early 4th century B.C. based on support of, or opposition to, Spartan influence, undermined the system to the point that the city could not resist its eventual assimilation by the Kingdom of Macedon and its successor, the Alexandrian Empire. Both the oligarchic pro-Spartans, such as the Thirty Tyrants, and the democratic anti-Spartans seized the property of defeated political rivals and resorted to death for people suspected of supporting those defeated rivals. It was the democratic faction, after all, that convicted Socrates and sentenced him to death for a trumped-up charge.
All of that said, one must not forget that between the initial democratic stirrings under Draco and the Macedonian occupation, the Athenian democracy functioned three centuries. Even after the end of its independence as a city-state, the Athenian constitution continued, albeit in modified form and with less power abroad.
The Spartan system was superficially similar to the Athenian constitution yet was grounded in some fundamentally different social and political realities. Like some other thoroughly stratified and structured societies, Sparta was highly legalistic. The tight and intrusive control over life that is associated with the “Spartan way” was rooted in law, not tyrannical arbitrariness. Law, in turn rested on tradition, not written statutes, allegedly due to a directive from its possibly fictional founder, Lycurgus.
Spartans attributed the origin of their system to their great “lawgiver,” Lycurgus, supposedly in the 9th century B.C. Because so little is known about Lycurgus, historians have questioned the timing and, indeed, his very existence as a real person. Still, this event lay at the base of Spartan claims that their democracy antedated that of Athens by a couple of centuries.
In some sense, it is curious to imagine Sparta as “democratic,” but there is a basis to that description. The apella was the Spartan Assembly, to which all adult male citizens authorized to bear arms belonged. Moreover, Spartan women were far more equal in status to men than were their Athenian counterparts. While they were not given formal political powers, Spartan women were expected to voice their opinions about public matters. Most important, they also, unlike Athenian women, had rights to their own property through dowry and inheritance.
At the same time, the real political power was exercised by two institutions, the gerousia (Council of Elders—gerontes) and the ephoroi (magistrates). The Assembly could only vote on proposals presented by the Council, not initiate them. There is dispute about whether the Assembly could even formally debate proposals, but it is likely that vigorous debates in fact took place. The Assembly was composed of Spartan warriors, after all. The Council consisted of the two Spartan kings and 28 citizens over the age of 60 who were elected by the Assembly for life. This made the Council the main legislative power in what might be considered a bicameral system. Cicero analogized the Council to the Roman Senate. While the Council was not composed of a hereditary “aristocracy,” as was the principal – but not sole — characteristic of the Roman Senate, its members were drawn from the most prominent and tradition-minded elements of Spartan men.
Political writers since ancient times often pointed to another feature of the Spartan constitution, the dual monarchy. The origins of that system are obscure. For example, historians have sought to locate that origin in an ancient dispute between two powerful noble families that was settled by making the leader of each a king. Others have seen this as the result of a union of various villages or tribes at the city’s founding, the chiefs of the two most powerful becoming the kings. In later years, the system evolved that one king was responsible for domestic matters, mainly religious and judicial, while the other was typically away on military expeditions. The two kingships were not explicitly hereditary, and the kings were elected, another democratic feature. But they were elected for life and from those same two ancient families.
Whatever its origins or democratic bona fides, writers have often lauded the dual monarchy as representing an effective barrier to centralization of power in a single tyrant. The force of tradition and the natural rivalries among powerful faction kept each in check. Given the largely ceremonial role of the kings, except in military campaigns, and the checks otherwise placed on the kings make this justification for the dual monarchy less compelling.
The final piece of the formal Spartan political structure was the board of magistrates. The ephoroi were elected annually by the Assembly. Even the poorest citizen theoretically could be elected. There could be no re-election to a subsequent term. Initially, the ephoroi had limited powers, but as time passed, their offices gained substantive powers. When away on a military campaign, the king was accompanied by two ephoroi. Similarly, the kings lost the power to declare war and to control foreign policy to the ephoroi and the Council. Much of this might be traceable to security concerns that a king could make surreptitious deals with enemies of Sparta or get entangled in foreign schemes injurious to Spartan survival. Except while acting as generals, the kings over time became figureheads. But the ephoroi themselves also had significant limitations on their powers, chief among them their short tenures.
Polybius, often described as the founding light of constitutional and political studies, described the Spartan system as a true balanced and mixed government. In the classic understanding, that meant it contained a mixture of monarchic, aristocratic, and democratic elements balanced in harmony to produce an effective government duly attentive to individual rights. It seems unpersuasive to describe the rigid and totalitarian Spartan society in that manner. In light of the functional dominance of the Council, with its life tenure and its selection from the upper levels of Spartan society, one might more readily classify Sparta as an oligarchic system.
The end of Spartan power was not due to any inherent defect in the constitutional structure. More likely were the combined factors of demographic collapse and overextension in foreign and military ventures. The near-constant warfare of the 5th and 4th centuries B.C. against Persians, then Athenians in the Peloponnesian Wars, then against the combination of Athens, Thebes, Corinth, and Persia in the Corinthian Wars, and, finally, against Thebes alone, depleted the Spartan hoplite infantry on which Spartan military success depended. The population of Spartan citizens shrunk, and their rule over the helots which made up 90% of the state’s residents became increasingly precarious.
The rigid nature of Spartan society, the paranoia reflected in the Spartan security state, and the traditionalism of the Council, shown for example by their unwillingness to extend citizenship to the helots, may have contributed to the downfall of Spartan influence after the Battle of Leuctra in 371 B.C. Still, the city at that time had been a powerful actor in the Mediterranean world for three centuries. Moreover, the system continued to operate reasonably well within the Roman world for nearly another eight hundred years, until it was sacked by Alaric and the Visigoths in 396 A.D.
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The Five Principles That Render the American Republic More Stable
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Sam Postell Essay 3: The Five Principles That Render the American Republic More Stable – Guest Essayist: Samuel Postell, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Sam PostellIn the last essay, I attempted to show how the framers rejected ancient political thought. In this essay, I will try to show what guided the framers of our Constitution. In Federalist 1, Publius made the bold claim that:
Publius implied that no past regime had created the circumstances for reasonable lawmaking or political stability. Past regimes lacked liberty, but they also lacked institutional arrangements to foster reflection and cooperation in law making, and thus were ruled by the force of one or the accidents of the many. Publius envisioned that America would create the opportunity for freedom and stability because of the regime’s dedication to liberty and natural rights, reliance on the people, and structure to combat the abuse of power.
In Federalist 9, Publius revealed what regimes governed by “accident and force” look like in practice: he claimed that “The petty republics of Greece and Italy… were kept in a state of perpetual vibration between the extremes of anarchy and tyranny.” Because no regime had provided a stable foundation for “reflection and choice,” the ancient regimes were led by the force of tyrants, or the anarchy typical of pure democracies. But what did the past regimes lack that made them unstable? Publius argued that they lacked a proper constitution that assured a “firm union.”
Publius argued that various principles unavailable to the ancients allowed the framers of our Constitution to check tyranny and prohibit anarchy. In Federalist 9, he argued that the vibration between the extremes of anarchy and tyranny might give the opponents of liberty just cause to “abandon that species of government as indefensible.” However, Publius argued that “The science of politics, however, like most other sciences, has received great improvement. The efficacy of various principles is now well understood, which were either not known at all, or imperfectly known to the ancients.” He argued that five principles rendered the American republic more stable than ancient constitutions. According to Publius, the following improvements are “means… by which the excellences of republican government may be retained and its imperfections lessened or avoided”:
The last of the five improvements was the most novel, but also the most criticized. For example, both Anti-Federalists, Cato and Brutus, argued that such an enlarged sphere made “consolidation” likely, and thus endangered liberty. Montesquieu, the thinker upon whom many of the founders’ relied, argued that free government could only exist in small republics. Additionally, the free regimes of the ancient world were much smaller than the United States, and when they expanded, they became corrupt and liberty was endangered.
In Federalist 10, Publius gave his most robust defense of the “enlarged sphere.” In that paper, he considered an enlarged sphere to be the means by which the union may “break and control the violence of faction.” He argued that there are two means for dealing with the problem of faction: you may either remove the causes, or control the effects. However, the former cure– removing the causes– is worse than the disease because it would require that one remove liberty because “liberty is to faction what air is to fire.” Publius argued that two things will follow from an enlarged sphere, both of which combat faction: first, enlarging the sphere multiplies the number of factions which makes it more difficult for one faction to become a majority, and second, if the country covers a larger tract of land, it will be more difficult for a faction to “concert and carry out its schemes of oppression.”
However, Publius did not explain the most prolific difference between the American Constitution and ancient constitutions until Federalist 51. In Federalist 51, Publius argued that the constitutional form makes possible an extensive republic while also providing checks upon the abuse of power. He argued that the Constitution created an “interior structure” which made the branches “by their mutual relations… the means of keeping each other in their proper places.” In Federalist 47, Publius established that the departments of power were “distributed and blended.” The distribution of powers into separate branches, he argued, is essential to ensure accountability and prohibit the abuse of power. In fact, he argued that the very definition of tyranny is “The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self appointed, or elective.”
Even before the Constitutional Convention, Madison noted that giving the government sufficient power while ensuring that power was not used to abuse rights was the “great desideratum” (Latin, meaning “great thing desired”). Publius argued that the next and most important task after dividing power was to provide some “practical security” to combat consolidation over time. In Federalist 48-50, he sought the means whereby the distribution of power into separate branches could be maintained. In Federalist 51, he revealed the practical security: the “interior structure” of the Constitution creates ambitious branches which counteract one another, and thereby limit the exercise of federal power.
Ultimately, Publius argued that in order to preserve liberty, each department must have “a will of its own” and each department should have “as little agency as possible in the appointment of the members of others”; additionally, each officer, in each branch, must have the “necessary constitutional means” and the “personal motives to resist encroachments from the others.” In other words, not only must the branches be separate, but the members of each branch must defend the rightful power of the branch to which he belongs. Publius envisioned a system in which each officer identified his own power with that of his branch, and became jealous of usurpation. He argued that the result is that “ambition” will counteract “ambition,” and each branch will check the others in the use of power. The result is that tyranny, consolidation, and the abuse of power is less likely, and the preservation of natural rights is more likely.
But in order to make each branch ambitious, each officer must be ambitious, and that requires that “the interest of the man must be connected to the constitutional rights of the place.” In order for this to occur, the officer must understand that whatever good he may do, or whatever glory he may harvest, ultimately, he requires that the branch to which he belongs maintains its Constitutional strength. Publius argues that such a system reinforces the separation of power. Paradoxically, the solution to the abuse of power is to make each branch ambitiously use its Constitutional powers to limit the abuse of power by other branches.
In our Constitution, therefore, there are a variety of institutional checks that keep the branches in their proper places. I will list a few of those checks inherent in the interior structure of our government. Publius remarks that the legislature is the most powerful branch so it is in need of extensive checks. He remarks that the legislature is an “impetuous vortex” swallowing the power of other branches. Therefore, our Constitution weakens the legislature by dividing its power between two houses and rendering each house different in mode of election and principle of representation. Additionally, the executive department has veto power over legislation. On the other hand, the Senate has the authority to declare war, so the president cannot determine foreign policy alone. The legislature is mixed with the executive and judicial departments when it comes to appointing justices of the Supreme Court, as the Senate must approve the president’s appointments to the Supreme Court. Additionally, the Vice President casts a tie-breaking vote in the Senate. The judiciary checks the legislature by considering the constitutionality of its laws. And finally, the states check the federal government because sovereignty is divided between the states and the federal government. Publius argues that this creates a “dual security” for the rights of the people.
The idea of blending power to control power, and rendering each branch sufficiently ambitious in order to combat tyranny and centralization, was an entirely new theory about how to control power. Institutionalizing this new theory made our Constitution completely novel in political science. Although the framers rejected the popular theory that a strict division of power was necessary to ensure the separation of powers, they did so after careful consideration of ancient history. For example, In Federalist 47, Publius argues that no state embraced a strict separation of power in its constitution, nor did the British government. Although almost all other regimes were forced by necessity to blend power, the American Constitution was the first to utilize the principle of blending power to ensure that power remained limited.
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American Founders’ Reliance on Western Tradition: Correcting Failures of Plato, Aristotle, and Ancient Greek Thought
90 in 90 2022, 6. Guest Constitutional Scholar Essayists, Blog, Sam Postell Essay 2: American Founders’ Reliance on Western Tradition: Correcting Failures of Plato, Aristotle, and Ancient Greek Thought – Guest Essayist: Samuel Postell, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, 13. Guest Constitutional Scholar Essayists, 90 Day Studies, Sam PostellIn a letter to Henry Lee written in 1825, Thomas Jefferson counseled that the Declaration of Independence’s authority rested “on the harmonising sentiments of the day, whether expressed in conversation, letters, printed essays, or in the elementary books of public right, as Aristotle, Cicero, Locke, Sidney, Etc.” George Washington had the play Cato performed before his troops at Valley Forge, presumably because he believed that ancient examples would inspire them. In what sense was America an experiment in self-government, and in what sense was it a continuation of the Roman or Athenian experiment in popular government? The American Founders relied on the Western tradition for their understanding of virtue, but they learned from the failures of the ancient regimes and sought to correct those failures when framing the Constitution.
The ancient constitutions presupposed a high degree of virtue, and ancient regimes would often stifle freedom in order to ensure that citizens cultivate virtue; the American Constitution, prioritizing liberty and individual rights, embraced a more sober understanding of human nature.
Plato’s Republic is considered his most comprehensive account of government, yet the imaginary republic constructed by Socrates stifled liberty to ensure order and harmony. The American founders rejected much of Plato’s thought because The Republic paints liberty as inconsistent with order and political unity. For example, in 1814 John Adams wrote to Thomas Jefferson,
“I amused myself with reading seriously Plato’s republic. I am wrong however in calling it amusement, for it was the heaviest task-work I ever went through. I had occasionally before taken up some of his other works, but scarcely ever had patience to go through a whole dialogue. while wading thro’ the whimsies, the puerilities, & unintelligible jargon of this work, I laid it down often to ask myself how it could have been that the world should have so long consented to give reputation to such nonsense as this?”
In addition to stifling liberty, The Republic relies on one-man rule and proposes that a philosopher king should be vested with power; the founders found this suggestion unpalatable because they believed that one-man rule could quickly lead to abuses of power. One of The Republic’s central allegories is the image of the “ship of state.” In Book 6, Socrates argues that the “true pilot” of the ship will be overlooked by the multitude, and he will be called a “star-gazer” or a “good for nothing.” Nevertheless, Socrates argues that such a man deserves to rule because a good captain must “pay attention to the year and seasons and sky and stars and winds, and whatever else belongs to his art.” In Federalist 10, Publius rejects Plato’s prescription of an “enlightened statesman” to steer the ship of state. He writes,
“Enlightened statesmen will not always be at the helm. Nor, in many cases, can such an adjustment be made at all without taking into view indirect and remote considerations, which will rarely prevail over the immediate interest which one party may find in disregarding the rights of another or the good of the whole.”
Not only did Publius believe that an enlightened statesman would likely be rejected, but he also believed that it would be unlikely that the statesman could “take into view indirect and remote considerations.” Whereas Plato believed that a high degree of knowledge was necessary for rule– however unlikely that knowledge may be– the founders believed that it was unlikely that rulers, even if enlightened, could properly consider and weigh all “indirect and remote considerations” having to do with politics in a popular regime. Additionally, the framers did not believe that enlightenment made men less self-interested; rather, they believed that even an enlightened statesman may have passions and interests that would tie him to a particular faction and corrupt his judgment.
If the framers did not follow Plato’s political prescriptions, did they also reject Aristotle? In The Politics, Aristotle identified six different kinds of regimes: monarchy, tyranny, aristocracy, oligarchy, polity, and democracy. He argued that what defines a regime as correct or deviant is whether the ruler rules for his own good, or the public good. He suggested a “mixed regime.” The mixture, he suggested, was an aristocratic republic. In Book 5, Aristotle argued that justice is the end of regimes, and that some degree of stability is necessary to promote peace and justice. Aristotle concluded that disputes among the few rich and the many poor result in instability and injustice. In Book 5, Chapter 7, he wrote that “Both polities and aristocracies are overturned above all through a deviation from justice in the regime itself.” Aristotle argued that such regimes are overturned because the parties attempt to rule for their own benefit at the expense of the common benefit. Aristotle argued that this results because the aristocratic and democratic elements of the regime have not been “finely mixed.”
While it does seem that our regime is mixed because we have aspects of each kind of regime, in Federalist 14 Publius argued that our republic is unmixed. He wrote, “America can claim the merit of making the discovery of the basis of unmixed and extensive republics.” In other words, he argued that the American founding presents a new kind of constitution, a true republic, and that no historical or philosophical examples can explain our Constitution. In Federalist 39, Publius argues that Holland, Venice, Britain, and Poland are all called republican governments, but argues that they are not truly republican in form.
There are many ways in which the U.S. Constitution is novel, but the most obvious novelty is a system of representation predicated on the consent of the people. In Federalist 39, when defining republicanism, Publius wrote that:
“It is ESSENTIAL to such a government that it be derived from the great body of the society, not from an inconsiderable proportion, or a favored class of it; otherwise a handful of tyrannical nobles, exercising their oppressions by a delegation of their powers, might aspire to the rank of republicans, and claim for their government the honorable title of republic. It is SUFFICIENT for such a government that the persons administering it be appointed, either directly or indirectly, by the people.”
In Federalist 51, Publius argued that what makes a republic– a reliance on the people– is also the “primary security” for liberty. He argued that “A dependence on the people is, no doubt, the primary control on the government.” Unlike Plato’s Republic, which relied on a philosopher king, the American Constitution relies on the virtue and wisdom of the people. Unlike Aristotle’s mixed regime, the idea of consent permeates all of our institutions. What makes the American regime unique is its firm reliance on the people as the source of political power, and the faith that the people are capable of justly wielding political power.
Did the American founders, therefore, reject ancient wisdom entirely? Although the framers rejected many of the ancients’ prescriptions for political constitutions and created a form of government which was unprecedented, they relied on ancient wisdom in order to do so. Although the framers rejected the totalitarian government of Plato’s Republic, and did not precisely follow Aristotle’s model for a mixed regime, what led them to create a novel form of government was an understanding of human nature and the failures of past experience. The framers were led by history and experience, and much of the history they considered was ancient, and they derived their critiques from the same foundation as the ancients did. In the next essay, I will consider the history and experiences that led the framers to create our Constitution, and I will highlight precisely what makes it different from past constitutions.
Samuel Postell serves as Executive Director of The Center for Liberty and Learning at the Founders Classical Academy of Lewisville, Texas. Mr. Postell graduated from Ashland University with undergraduate degrees in Politics and English. He earned his master’s degree in Political Thought from the University of Dallas and is working on his dissertation to complete his Ph.D. Mr. Postell is writing a book on Henry Clay and legislative statesmanship, a subject about which he frequently writes and publishes. He has also conducted studies for Ballotpedia and has frequently contributed to Law and Liberty and Constituting America. At Founders Classical Academy he teaches courses on Government and Economics, and has taught courses on American Literature and Rhetoric.
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American Exceptionalism Revealed
BlogEssay #1 — HISTORIC TOPIC #1: Plato, Aristotle, and Ancient Greek Thought on Human Nature and Good Government – How they succeeded and how they failed.
Essay #2 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Plato, Aristotle, and Ancient Greek Thought – Their thinking and debates about how to prevent the previous regime’s weaknesses and failures.
Essay #3 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of Plato, Aristotle, and Ancient Greek Thought – Specifics in the Constitution dealing with how to prevent the previous regime’s failures; see requirements for electors and elected officials.
Essay #4 — HISTORIC TOPIC #2: The Constitutions of Athens and Sparta (Democracy and Oligarchy and Instabilities of Each) – How they succeeded and how they failed.
Essay #5 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Constitution of Athens and Sparta – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalists, but rather a commentary on their corresponding prescience. Madison focuses extensively on the distinctions between the U.S. Constitution and ancient Foundings in Federalist No. 38; Fed. 10, 18, 38, 55, 63.
Essay #6 — THE CONSTITUTION’S WISDOM: — Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Constitution of Athens and Sparta – Specifics in Constitution dealing with how to prevent the previous regime’s failures; Focus on limited/enumerated powers of Congress in Article I, Section 8, and the ratification/amendment process.
Essay #7 — HISTORIC TOPIC #3: — The Stoics and Classic Roman Thought on Human Nature and Good Government (Cicero and Universal; Law; Polybius and Balanced Government) – How they succeeded and how they failed.
Essay #8 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: — Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Stoics & Classic Roman Thought on Human Nature & Good Government – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. Fed. 47, 51, 57, 66.
Essay #9 — THE CONSTITUTION’S WISDOM: — Successful Counteracting Wisdom in the U.S. Constitution to the Failures of The Stoics & Classic Roman Thought on Human Nature & Good Government – Specifics in Constitution dealing with how to prevent previous regime’s failures.
Essay #10 — HISTORIC TOPIC #4: The Roman Republic (From Aristocracy To Dictatorship) – How they succeeded & how they failed.
Essay #11 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Roman Republic – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalists but rather a commentary on their corresponding prescience. Focus on Federalist Papers view of executive and also on improvements to Roman Senate by Madison. Fed. 10, 34, 41, 70.
Essay #12 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Roman Republic; Specifics in Constitution dealing with how to prevent previous regime’s failures – Necessary & proper clause in Article I section 8; Nature of the vesting clause of executive power in Article II.
Essay #13 — HISTORIC TOPIC #5: Five Hundred Years of the Republic of Venice (What is a Republic) – How they succeeded & how they failed.
Essay #14 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Five Hundred Years of the Republic of Venice – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalists but a commentary on their corresponding prescience. See Federalist No. 39 on “what is a republic?” See James Madison’s “Vices” on “republican principle” & majority rule. Fed. 9, 14, 39, 51, 52, 55, 57. No titles of nobility may be granted by the U.S. [Article I, Section 9] nor by any state [Article I, Section 10]; nor may a person holding the office of honor in federal government receive a title from a foreign country [Article I, Section 9].
Essay #15 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of Five Hundred Years of the Republic of Venice –Specifics in Constitution dealing with how to prevent previous regime’s failures; Republican Guaranty clause.
Essay #16 — HISTORIC TOPIC #6: Holy Roman Empire (Imperium in Imperio, Ruler Elected by Electoral College) – How they succeeded & how they failed.
Essay #17 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Holy Roman Empire – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. See Federalist #18-20 on problems with ancient confederacies – failures to act because of disagreements between member states. Fed. 19, 22, 43.
Essay #18 — THE CONSTITUTION’S WISDOM: — Successful Counteracting Wisdom in the U.S. Constitution to the Failures of Holy Roman Empire – Specifics in Constitution dealing with how to prevent previous regime’s failures; Modes of an election, especially for executives.
Essay #19 — HISTORIC TOPIC #7: United Provinces of the Netherlands (Federal Head Over Constituent Sovereigns) – How they succeeded & how they failed.
Essay #20 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of United Provinces of the Netherlands – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. See Federalist #18-20 on problems with ancient confederacies – failures to act because of disagreements between member states. Fed. 15, 20, 54.
Essay #21 — THE CONSTITUTION’S WISDOM: — Successful Counteracting Wisdom in the U.S. Constitution to the Failures of United Provinces of the Netherlands – Specifics in Constitution dealing with how to prevent previous regime’s failures. Supremacy clause; Article I section 10 (limits on state power); Article IV (on relations between the states).
Essay #22 — HISTORIC TOPIC #8: Machiavelli & the Science of Politics (The Pursuit & Maintenance of Power by the Ruler) – How they succeeded & how they failed.
Essay #23 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Machiavelli & the Science of Politics – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. Machiavelli calls for an energetic executive to do the things necessary for the security of both his power & the lives & property of his subjects; the problem is the lack of checks on executive authority (at least in The Prince). Contrast Federalist #51 on checks & balances with Federalist 72 on the need for the energetic executive. See Federalist 23 for the need for energy in government to achieve necessary ends. Fed. 31 (“science” of politics to prevent excess power). Fed. 37 (limitations of the science of politics). Fed. 51.
Essay #24 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of Machiavelli & the Science of Politics – Specifics in Constitution dealing with how to prevent previous regime’s failures. Impeachment, treason, legislative process.
Essay #25 — HISTORIC TOPIC #9: The “Sun King,” Louis XIV (The King As Sovereign) – How they succeeded & how they failed.
Essay #26 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the “Sun King,” Louis XIV – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. Fed. 69, 70.
Essay #27 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the “Sun King,” Louis XIV – Specifics in Constitution dealing with how to prevent previous regime’s failures.
Essay #28 — HISTORIC TOPIC #10: King Versus Parliament in 17th Century England (From Absolutism to Constitutional Monarchy; Montesquieu) – How they succeeded & how they failed.
Essay #29 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of King Versus Parliament in 17th Century England – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. See Federalist #68 contrasting constitutional executive to a monarch. See Brutus, Cato No. 4, & Old Whig No. 5 on dangers of absolute/hereditary monarchy. Fed. 26, 47, 52.
Essay #30 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of King Versus Parliament in 17th Century England – Specifics in Constitution dealing with how to prevent the previous regime’s failures.
Essay #31 — HISTORIC TOPIC #11: The Mayflower Compact & the City of God on Earth (Government by Consent; Government in the Service of God) – The genesis of self-government, the strengths & weaknesses.
Essay #32 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Mayflower Compact & the City of God on Earth – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures – or in THIS case, IMPROVED upon or BUILT upon their genius. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. See Federalist & Anti-Federalist literature on American exceptionalism – what makes America special? Federalist #37: “It is impossible for the man of pious reflection not to perceive in it a finger of that Almighty hand which has been so frequently & signally extended to our relief in the critical stages of the revolution.” Brutus I’s use of Biblical language to describe the importance of the ratification question. Fed. 37, 69. Religious test oaths were prohibited under Article VI, Section 3. Religious liberty & 1st Amendment; Virginia Memorial & Remonstrance of 1786, as well as Statute for Religious Freedom of that year. Massachusetts Constitution of 1780.
Essay #33 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Mayflower Compact & the City of God on Earth – Specifics in Constitution dealing with how to prevent previous regime’s failures; Preamble: “Secure the blessings of liberty.”
Essay #34 — HISTORIC TOPIC #12: The Creation of Colonial Governments in British North America (Types of Charters; Eventual Failure & Royal Control) – How they succeeded & how they failed.
Essay #35 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Creation of Colonial Governments in British North America – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. Thomas Jefferson, “Rights of the British Colonies”? David Ramsay (Federalist historian) on colonial histories & abuses by British; Brutus I against expansion/empire; Fed. 52.
Essay #36 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Creation of Colonial Governments in British North America – Specifics in Constitution dealing with how to prevent previous regime’s failures. Addition of territory/admission of new states.
Essay #37 — HISTORIC TOPIC #13: The American Declaration of Independence (Musings on Human Nature & the Basis of Government; Revolution) – The genius of the genesis.
Essay #38 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful CONTRIBUTING Wisdom of Federalist/Anti-Federalist (FOUNDING FATHERS) to the American Declaration of Independence – See Federalist #40 on right to revolution, and #43 on the transcendent right to preservation by the law of nature; Fed. 28, 39, 40, 49, 78.
Essay #39 — THE CONSTITUTION’S WISDOM: Successful WISDOM from FOUNDING FATHERS to PRESERVE the American Declaration of Independence.
Essay #40 — HISTORIC TOPIC #14: Chaos & Experimentation in the Early State Constitutions (Legislative Dominance; Who Makes Constitutions) – The strengths & weaknesses.
Essay #41 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful WISDOM of FOUNDING FATHERS to the EXPERIMENTATION in the Early State Constitutions – FOUNDERS WISDOM & lessons noted to this experimentation; John Adams “Thoughts on Government”; James Madison, “Vices of the Political System of the United States”; Federalist No. 9 & 10 on “petty republics” & problem of faction in states; Fed. 47, 48, 53, 81, 83.
Essay #42 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the EXPERIMENTATION in the Early State Constitutions – Specifics in Constitution dealing with how to prevent previous regime’s failures; The legislative process on Constitution; function of the federal courts & judicial review.
Essay #43 — HISTORIC TOPIC #15: From the Articles of Confederation to the Constitution (Government in Stasis, What Is/Are the United States) – Strengths & weaknesses.
Essay #44 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the EXPERIMENTATION of Articles of Confederation to the Constitution – Brutus I on nature of the Union; Hamilton to James Duane, 3 September 1780; Madison, “Vices of the Political System of the U.S.”; Federalist #15 on the situation under the Articles of Confederation; Generally Fed. 15-22; Fed. 39, 40, 43; Anti-Fed.: Eleventh Letter of Centinel, in Independent Gazetteer, January 16, 1788, in McMaster & Stone, Pennsylvania & the Federal Constitution, (1888), pp. 634-637; also in Morton Borden, The Antifederalist Papers, (1965), Antifederalist No. 6.
Essay #45 — THE CONSTITUTION’S WISDOM: From Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Articles of Confederation & the Constitution – Specifics in Constitution dealing with how to prevent weaknesses in Articles; How the Constitution creates a “more perfect Union.”
Essay #46 — HISTORIC TOPIC #16: The Bill of Rights (Why? Types of rights? Source of rights?) – Why a bill of rights…what in constitution & fears of big government warranted it such as: where England failed with Magna Carta.
Essay #47 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful COLLECTIVE Wisdom of Federalist/Anti-Federalist to the NEEDS of the Bill of Rights – Brutus IV; Federalist No. 84; Madison, “Letter to Jefferson,” 17 October 1788; Madison, Speech in the House of Representatives, 8 June 1789; Anti-Fed.: An Old Whig, in The Massachusetts Gazette, November 27, 1787; also in Morton Borden, The Antifederalist Papers, (1965), Antifederalist 18-20; Fed. 84; Declaration of Independence, petitions from states during ratification, debates in Congress.
Essay #48 — THE CONSTITUTION’S WISDOM: Successful FOUNDERS Wisdom in the U.S. Constitution That WAS a BILL OF RIGHTS & How LIMITED GOVERNMENT IN CONSTITUTION WAS a BILL of Rights – There are several places in the Constitution (before the Bill of Rights) in which rights are protected by provisions: e.g., no titles of nobility, no ex post facto laws, no suspension of habeas corpus unless invasion/rebellion, no bills of attainder, etc.
Essay #49 — HISTORIC TOPIC #17: The Importance of Virtue: John Adams, Alexander Hamilton, John Taylor of Caroline (Education & Training – Virtue As Fundamental to Republican Government; Separation of Powers & Other “Auxiliary Precautions”).
Essay #50 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful CORRESPONDING Wisdom of Federalist/Anti-Federalist to the WISDOM of the Importance of Virtue – John Adams, Alexander Hamilton, John Taylor of Caroline. John Adams letters to Abigail Adams, Mercy Warren, Thomas Jefferson Federalist No. 51, 55; Adam’s writings in 1776, 1798; Fed. 56, 76.
Essay #51 — THE CONSTITUTION’S WISDOM: Successful CORRESPONDING Wisdom in the U.S. Constitution to the Importance of Virtue – John Adams, Alexander Hamilton, John Taylor of Caroline.
Essay #52 — HISTORIC TOPIC #18: The French Revolution & the Reign of Terror (Violent Revolutions Versus Peaceful Change) – The success & failures of the French Revolution. Jefferson’s naïveté & Adam’s prescience.
Essay #53 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the French Revolution & the Reign of Terror – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures. This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience. Federalist No. 1: “Reflection & choice.” Fed. 40, 49, 78.
Essay #54 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the French Revolution & the Reign of Terror – Specifics in Constitution dealing with how to prevent previous regime’s failures.
Essay #55 — HISTORIC TOPIC #19: The Rise of Napoleon Bonaparte (Preventing One-Man Rule Through Layered Election & Separation of Powers) – The essayist will talk about why and how Napoleon succeeded. Also how he manipulated & excited people to think he could succeed.
Essay #56 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Rise of Napoleon Bonaparte – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Fed. 38, 70
Essay #57 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Rise of Napoleon Bonaparte – Specifics in Constitution dealing with how to prevent previous regime’s failures.
Essay #58 — HISTORIC TOPIC #20: The Communist Manifesto (Views On Human Nature & Class Loyalties; Madisonian Pluralism) – Why & how the Communist Manifesto manipulated & excited people to think it could work. Additionally, the obvious & subsequent failure. In essence: success (manipulations) & failures with its theories.
Essay #59 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Communist Manifesto. – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Federalist No. 10 on human nature & protection of property; Fed. 10, 51, 54, 70.
Essay #60 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Communist Manifesto – Specifics in Constitution dealing with how to prevent previous regime’s manipulations & failures; How the Constitution protects one’s property but minimizes class distinctions concerning rights.
Essay #61 — HISTORIC TOPIC #21: The American Civil War: Disunion & Reconstruction (What is the Union; Secession; “An Indestructible; Union Composed of Indestructible States”).
Essay #62 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the American Civil War. This is not a counteracting debate between Federalists & Anti-Federalists but a commentary on their corresponding prescience; Federalist #2-4 on the benefits of Union; Federalist #5-6 on dangers of sectionalism (including on economic grounds); Fed. 42, 59.
Essay #63 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the American Civil War: Disunion & Reconstruction – Specifics in Constitution dealing with how to prevent such disunion; Nature of representation in the House & Senate; electoral college mode of electing President.
Essay #64 — HISTORIC TOPIC #22: World War I & the Collapse of the Old World Order (Federalist 6/7 & Conflicts Among Republics); The success of the Old World Order & where it failed & how it led to WWI.
Essay #65 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of World War I & the Collapse of the Old World Order – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalists but a commentary on their corresponding prescience. Fed. 6, 7, 74, 75.
Essay #66 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of World War I & the Collapse of the Old World Order – Specifics in Constitution dealing with how to prevent the previous regime’s failures.
Essay #67 — HISTORIC TOPIC #23: Stalin & the Military Regime; The use of persuasion & how Stalin slyly manipulated the people & situation into a Military Regime.
Essay #68 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Stalin & the Military Regime – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Federalist justification of standing army; Anti-Federalist concerns; Fed. 25, 26, 28, 41, 46.
Essay #69 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to Stalin & the Military Regime – Specifics in Constitution dealing with how to prevent the previous regime’s failures.
Essay #70 — HISTORIC TOPIC #24: The Progressive Vision & Its Challenge to the Constitutional Order (“Negative” Constitution to Protect Liberty Inherent in Individuals From Government, to “Active” Government to Reshape Society Into an “Organic” State in Which Individuals Are Mere Cogs) – The progressive movement, what vulnerability in the U.S. populace led to it, why it succeeded, how it has “failed” or been limited.
Essay #71 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Progressive Vision & its Challenge to the Constitutional Order; Their thinking/debates about how to prevent the previous regime’s weaknesses/failures – or in this case, had a loophole that allowed it; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience.
Essay #72 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Progressive Vision & its Challenge to the Constitutional Order – Specifics in Constitution dealing with how it has prevented full progressive movement or could if people understood the Constitution better.
Essay #73 — HISTORIC TOPIC #25: The Economic Depression & the Birth of New Deals & Great Societies (Dangers of an Administrative State Governed by Unelected Bureaucrats; Separation of Powers; Judicial Review; Due Process; Status of Rights in Property).
Essay #74 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Economic Depression & the Birth of New Deals & Great Societies – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience.
Essay #75 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Economic Depression & the Birth of New Deals & Great Societies.
Essay #76 — HISTORIC TOPIC #26: Hitler & the Third Reich – How Hitler used an economic crisis to fool the German people and lead them into tyranny and evil.
Essay #77 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Counteracting Wisdom of Federalist/Anti-Federalist to the evil and tyranny of Hitler & the Third Reich.
Essay #78 — THE CONSTITUTION’S WISDOM: Counteracting Wisdom in the U.S. Constitution to the evil and tyranny of Hitler and the Third Reich.
Essay #79 — HISTORIC TOPIC #27: Chairman Mao & the Cultural Revolution (Freedom of Speech & Religion; Right to Direct the Upbringing of Children) – What led to Mao’s take over & the rise of the Cultural Revolution.
Essay #80 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of Chairman Mao & the Cultural Revolution –Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience.
Essay #81 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of Chairman Mao & the Cultural Revolution – Specifics in Constitution dealing with how to prevent the previous regime’s failures.
Essay #82 — HISTORIC TOPIC #28: The Creation of the United Nations & the “Citizen of the World” (Treaties; Nations; Borders; Citizenship) – Reasons why people thought it was a good idea & how the failures of international regimes in the past led to it.
Essay #83 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Creation of the United Nations & the “Citizen of the World” – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Federalist #6 on foreign policy & motives of other nations.
Essay #84 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Creation of the United Nations & the “Citizen of the World” – Specifics in Constitution dealing with how to prevent such global interplay.
Essay #85 — HISTORIC TOPIC #29: The Collapse of the British Empire – America’s Manifest Destiny but also our curbing of international domination & overreach & how the founders wisdom led to such curbing.
Essay #86 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Collapse of the British Empire – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Brutus & other Anti-Federalists on problems of representation in “large republics” (i.e., empires).
Essay #87 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failures of the Collapse of the British Empire – Specifics in Constitution dealing with how to prevent large republics & international interplay & allowance of international involvement & its dangers.
Essay #88 — HISTORIC TOPIC #30: The Failings of Utopian Creation Experiments (Framers As Constructing Workable Government, Not an Ideological Blueprint; Madison’s “Best Possible” Government; Franklin’s Pragmatism; Connecticut Compromise; Compromise Over Slavery Issue) – The dangers of utopian thinking in our American Republic. How our founders were aware & educated about historic failings. How we should have such awareness & education as a populace to prevent such historic failures in our republic – as history has endured before & after our founding. How our founders’ prescience & founding documents still hold true, that this is why we are exceptional. “A republic if we can keep it.”
Essay #89 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Successful Counteracting Wisdom of Federalist/Anti-Federalist to the Failures of the Failings of Utopian Creation Experiments – Their thinking/debates about how to prevent the previous regime’s weaknesses/failures; This is not a counteracting debate between Federalists & Anti-Federalist but a commentary on their corresponding prescience; Fed. 14, 31, 37, 85.
Essay #90 — THE CONSTITUTION’S WISDOM: Successful Counteracting Wisdom in the U.S. Constitution to the Failings of Utopian Creation Experiments – Specifics in Constitution dealing with how to prevent Utopian Creation Experiments.
Wisdom of the Founders: Framing a Constitution on Human Nature
90 in 90 2022, Christopher C. Burkett, 6. Guest Constitutional Scholar Essayists, Blog Essay 1: Wisdom of the Founders: Framing a Constitution on Human Nature – Guest Essayist: Chris Burkett, 12. American Exceptionalism Revealed, 2022 American Exceptionalism Revealed 90 Day Study Essay Schedule, Christopher C. Burkett, 13. Guest Constitutional Scholar Essayists, 90 Day StudiesHow did the American Founders acquire the wisdom to frame a Constitution that has withstood many challenges to liberty and self-government for over two hundred years? Their deep interest in understanding human nature, derived from a careful study of history, allowed them to create a Constitution that both improved upon past constitutions and also anticipated future developments well beyond their time.
The American Founders studied ancient constitutions carefully, especially those of Greece and Rome, and sought to improve upon their imperfections. They found that these ancient regimes were all founded on unrealistic notions of human nature, which led the ancients to count on a degree of civic virtue that was either too high or too low. Many ancient regimes assumed that “there is not sufficient virtue among men for self-government; & that nothing less than the chains of despotism can restrain them from destroying & devouring one another.”[1] The Founders discovered that ancient democracies – or “petty republics” as Alexander Hamilton called them – too often vibrated between the extremes of anarchy and tyranny.[2] The defect in these ancient constitutions was a lack of institutions necessary to preserve both virtue and liberty; many lacked, for example, a proper separation of powers, adequate checks and balances, and important representative bodies such as a senate. Without proper constitutional arrangements, as James Madison observed, “Had every Athenian citizen been a Socrates; every Athenian assembly would still have been a mob.”[3]
The American Founders needed to improve upon these constitutional devices because they wanted to create a political system that balanced civic virtue with liberty. To accomplish this, they established a Constitution framed upon a more realistic notion of human nature – one that acknowledged and anticipated both the good and bad aspects of human motives. “As there is a degree of depravity in mankind which requires a certain degree of circumspection & distrust,” James Madison wrote, “so there are other qualities in human nature which justify a certain portion of esteem & confidence. Republican government presupposes the existence of these qualities to a higher degree than any other form.”[4] The Founders’ study of history revealed that in some fundamental ways, human nature never changes. Human beings are capable of being reasonable and therefore self-governing, but one should not ignore the propensity of mankind to pursue and abuse power for self-interested purposes. By framing a constitution upon a realistic understanding of unchanging human nature, they anticipated all sorts of new political developments: the forms of tyranny might change in the future, but the sources would not.
The American Founders applied what they learned from history and human nature to fix the defects of the Articles of Confederation. The glaring defect of the Articles of Confederation was the frequent failure of the state governments to abide by the terms of that compact – despite the fact that they had all promised to do so. States often refused to pay their share of revenue for the good of the Union, violated international treaties, and exercised other powers that were prohibited by the Articles of Confederation. This led George Washington to observe in 1786, “We have errors to correct. We have probably had too good an opinion of human nature in forming our confederation. Experience has taught us, that men will not adopt & carry into execution, measures the best calculated for their own good without the intervention of a coercive power.”[5] The proposed Constitution, created by the Federal Convention of 1787 to correct these errors, was then submitted to the public for ratification.
The debate over ratification was also the greatest debate in history on human nature. Supporters and critics of the proposed Constitution – Federalists and Antifederalists – made insightful arguments learned from the lessons of history regarding human nature. The key to a good constitution, according to Antifederalist Brutus, for example, is establishing good representation. A virtuous citizenry is especially important under any constitution to check the self-interested abuses of power by elected representatives. “It is a truth confirmed by the unerring experience of ages,” wrote Brutus, “that every man, and every body of men, invested with power, are ever disposed to increase it, and to acquire a superiority over every thing that stands in their way.” This disposition to attain and abuse power, “which is implanted in human nature,” requires sufficient protections against potential tyranny.[6] “The principle of self-love, therefore, that will influence the one to promote the good of the whole, will prompt the other to follow its own private advantage. The great art, therefore, in forming a good constitution, appears to be this, so to frame it, as that those to whom the power is committed shall be subject to the same feelings, and aim at the same objects as the people do, who transfer to them their authority. There is no possible way to effect this but by an equal, full and fair representation; this, therefore, is the great desideratum in politics.”[7]
Federalist James Madison, considered to be the Father of the Constitution, agreed with Brutus on the fundamental difficulty of framing good government – the natural propensity of human beings, out of self-love, to put their private interest above the common good. In Federalist No. 10, Madison argued that a constitution must be framed on the understanding that men are prone by nature to become “factious,” and that the causes of faction are rooted in human nature. Factions are groups of people, according to Madison, united by a common interest or passion, who want to use political power to harm or violate the natural rights of others. From his careful study of history, Madison learned that factions have been “the mortal diseases under which popular governments have everywhere perished.” The causes of faction might only be eliminated, Madison argued, by eliminating liberty itself – in which case the “remedy” would be “worse than the disease.”[8] Rather than trying to eliminate the causes of faction, Madison’s solution was to frame a Constitution that acknowledged the likelihood of factions in politics, and sought to control their dangerous effects through the means of properly separating power and providing sufficient checks and balances between the branches of government. Madison’s insights into human nature led to important improvements to the science of politics and of constitution making.
The insights learned from history allowed the American Founders to infuse the Constitution with a wisdom that stretched far into the future. They understood well that so long as human beings are human beings, the possibility of tyranny will always exist. Even though new forms of tyranny might emerge, its causes remain the same. Because its foundation rested on an understanding of unchanging human nature, the Constitution has proven remarkably adaptable and capable of dealing with new challenges to liberty and self-government for over two hundred years.
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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[1] Federalist No 55
[2] Federalist No. 9
[3] Federalist No. 55
[4] Federalist No. 55
[5] George Washington to John Jay, August 15, 1786
[6] Brutus No. I
[7] Brutus No. IV
[8] Federalist No. 10
Giovanni Adu-Gyamfi
BlogWatch Giovanni’s Winning PSA:
Our Interview With Giovanni
Was this the first time you entered the contest?
Yes.
How did you hear about the contest?
I was recommended to it by a close family friend.
What inspired your work?
Growing up, I was passionate about history, knowing a lot about the presidents.
What did you learn while creating your entry?
I learned what it means to carry out civil civic conversations, which I never knew about.
How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I hope to encourage others to learn more about civil civic conversations.
How do your friends respond to history or talking about the Constitution?
They are neutral to it.
What do you love about U.S. History and the forming of our government?
I like learning about how our country was exactly formed.
Which U.S. historical site would you like to visit?
White House.
Which American historical figure is most influential/inspirational to you?
Martin Luther King Jr.
Who is your greatest role model?
My parents.
What in your life are you most passionate about?
I’m most passionate about my education.
How do you spend your free time?
In my free time, I read, play soccer, watch TV, study, and work out.
What are your plans for the future?
Right now, I am a public health major. I hope to help with the control of diseases.
If you could do one super impactful thing to help people, what would it be?
I would be an advocate for mental health.
Why is the Constitution relevant today?
It is relevant today because it basically tells us what we are entitled and have rights to.
Dawson Rhoades & Stella Mayes
BlogDawson Rhoades, 12, is a 6th Grader at Grapevine Faith Christian School and resides in Texas with his parents and his older brother. Dawson’s hobbies include playing tennis, pickleball, golf, water skiing, acting, and performing on the piano. In his free time Dawson can be found adding music to his “favorites” playlist, which includes songs from the 80’s, Contemporary Christian, and Country Hits. Dawson’s favorite class is American History. Dawson enjoys learning about our country’s rich history and the lessons that can be learned from our past. He is honored to have been selected as “Best Middle School Song Winner.”
Listen to Dawson’s Winning Song Below:
Our Interview With Dawson
Was this the first time you entered the contest?
Yes!
How did you hear about the contest?
My advanced science teacher Mrs. Lauden assigned the project.
What inspired your work?
I love to write music and I love America, so I decided to enter a song about the Constitution in the competition.
What did you learn while creating your entry?
I learned that in the Bill of Rights there’s a provision regarding the housing of soldiers and another regarding unlawful search and seizure.
What do you love about U.S. History and the forming of our government?
I love that we have ups and downs in our history that we can learn from.
Which U.S. historical site would you like to visit?
Pearl Harbor
Which American historical figure is most influential/inspirational to you?
I would say Donald Trump because he is a smart businessman who ran our country like a business and promoted America first.
Who is your greatest role model?
My grandfather is my greatest role model because even though he has a disease that prevents him from doing the things he loves like tennis and golf, he perseveres and does the best he can and is supportive of his family and treats everyone he meets with respect and kindness.
What in your life are you most passionate about?
I am passionate about music, tennis, and personifying Jesus through my actions.
How do you spend your free time?
I spend my free time playing board games with my family and playing tennis.
What are your plans for the future?
I want to become a marine biologist. I’ve always loved nature and animals, in particular. I’d like to do something to benefit animals.
If you could do one super impactful thing to help people, what would it be?
America is one nation under God. Therefore, I would spread the gospel and the good word of Jesus.
Why is the Constitution relevant today?
The Constitution justifies our freedoms and gives us guidelines to follow.
Louis Akkermans & Casey Chapter, Winners – Best Short Film
BlogLouis Akkermans is 21 years old and beginning his MA in Public Interest Media and Communication. Interested in filmmaking, he hopes to find a path that would allow him to write for the screen, though video production as a whole is a passion of his and one he could inhabit in any facet. Topics he is interested in are politics, philosophy, inter/intrapersonal relationships, and intimacy/loneliness.
Casey Chapter is a senior at Florida State University studying Digital Media Production and Literature. Throughout her education, Casey has been interested in journalism in all of its forms, from print newspapers to radio broadcasts to documentaries. While she currently serves as the Managing Editor of the FSView & Florida Flambeau (FSU’s independent, student-run newspaper), she aims to be a documentary producer in the future and hopes to attend FSU’s graduate program in Public Interest Media & Communications. In her free time, Casey enjoys reading, writing, and playing with her dog Lucy and her cat Ashe.
Watch Louis & Casey’s Winning Short Film Below!
Our Interview With Casey & Louis
Was this the first time you entered the contest?
Casey: Yes, I had never previously entered any of Constituting America’s contests.
Louis: Yes!
How did you hear about the contest?
Casey: I was referred to Constituting America’s contest by Izzy Cring, who has won the contests for best high school song and best college song. We have worked together on video projects in the past. She also works with Constituting America now.
Louis: Both Casey and I heard about the competition through our friend Izzy Cring.
What inspired your work?
Casey: As a journalist, I have done a lot of reporting on local city commissions, boards, and committees of various kinds. I was interested in the idea of using the format of a local political meeting, such as a sub-committee meeting, and playing with it to create a funny and honest film that shows how the system works.
Louis: We wanted to poke some fun at the stalling, slow-moving, and unimportant debates that sometimes occur in government. Our video was meant to hyperbolize some of the drawbacks that occur in a ruminating democracy.
What did you learn while creating your entry?
Casey: I learned that creating a film is a complex and sometimes difficult endeavor, but it’s worth it once you get to see the final product. I’m very proud of what we came up with.
Louis: A creative partner is invaluable. Casey and I hadn’t worked in that capacity before, and once we passed the awkward idea formulation stage production was like a well-oiled machine.
How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Casey: As a journalist, I think about and talk about the first amendment a lot. I plan to continue to educate my peers on the importance of a free press and the many other freedoms included in the Constitution.
Louis: By my words and actions. We sometimes forget the purpose of government; how it works and why it works the way it does. It’s important to critique our systems, but before we do that we must understand why those systems were put in place. Sometimes we find that those systems should stay upheld and other times they should change. The constitution grants us a foundation to begin that discussion.
How do your friends respond to history or talking about the Constitution?
Casey: I have engaging discussions with my friends about the U.S. Constitution and government system.
Louis: This is admittedly a subject that doesn’t come up often in conversation. If it does, it’s usually framed through the topic of current events. It’s a subject that is missing in most people’s thought processes.
What do you love about U.S. History and the forming of our government?
Casey: I love that America has a free press, as I think this is a vital part of a democracy. This allows everyone to be informed about their government and their communities.
Louis: The tenacity of our government. We live in the longest lasting governmental institution of the modern day. It’s through the belief of its people and the stability those founding documents provide that our country has lasted for so long; that is to be admired.
Which U.S. historical site would you like to visit?
Casey: I would like to visit Mount Rushmore in my lifetime.
Louis: I would love to visit the Grand Canyon one day.
Which American historical figure is most influential/inspirational to you?
Casey: Ruth Bader Ginsburg is an inspirational figure that I look up to. After learning about her struggles throughout her life, and how she managed to become a successful lawyer and eventual Supreme Court Justice while juggling being a mother, I felt inspired by her tenacity.
Louis: Even the best and brightest of U.S. history can be mired with scandal and unsuccessful policy. Though controversial I find Franklin D. Roosevelt to embody much of what is desirable in a leader. Providing stability during a destabilizing crisis and creating policy that uplifts and secures the average American. You find these qualities in other figures, but FDR is a stark and prominent symbol of those characteristics.
Who is your greatest role model?
Casey: My mother is my greatest role model. She managed to become a successful business owner while being a single mother at a young age, and has always been my role model growing up.
Louis: There are many people I take great inspiration from but there is no one I wholly want to emulate. There are people who demonstrate skills or characteristics that I would like to mimic, but it’s more a process of taking all the good and leaving the bad.
What in your life are you most passionate about?
Casey: I am most passionate about informing people and staying informed myself on international, national, state and local occurrences. I feel that it is important to be fully informed from multiple sources of information in order to have my own understanding of events and phenomena throughout the world.
Louis: Currently, it’s figuring out what I am passionate about. I have a love for many things, so I suppose I’m passionate about creating a “life formula” that allows me to do as many lovely things as I can.
How do you spend your free time?
Casey: I spend lots of time reading and writing. I also enjoy filming and editing documentary-style videos.
Louis: I exercise, consume media, write, and spend time with friends and family. What most people do.
What are your plans for the future?
Casey: I plan to pursue a Master’s degree at Florida State University and eventually become an independent video journalist or documentarian.
Louis: I want to make films in some capacity.
If you could do one super impactful thing to help people, what would it be?
Casey: I enjoy telling people’s stories so that the world is more aware of what is going on around them. Writing nonfiction news stories about everyday people and their struggles allows others to become more aware of their communities and can lead to people taking action.
Louis: As a filmmaker my skills lie in effectively communicating ideas visually. If opportunity allows, I want to contribute to communicating a crisis or issue to a mass audience through that medium.
Why is the Constitution relevant today?
Casey: The Constitution comes up every day in political discussions between citizens, politicians, activists, and others throughout America. It is the basis for American citizens’ rights, and provides us with foundational rights that help maintain our democracy.
Louis: It guides every action and debate that takes place in government.
Maya Robinson, Winner: Best High School STEM
BlogMaya Robinson is a senior at Gann Academy in Waltham, Massachusetts. She loves exploring interesting mathematical concepts and is developing a budding interest in coding. She has attended the Ross Mathematics Program and PROMYS over the past two summers, and she is hoping to continue deepening her understanding and appreciation of number theory this summer. Besides math, Maya enjoys being involved in theatre at Gann, whether it be acting in productions, being a House Manager, attending drama club meetings, or taking theatre classes. Every week, she looks forward to leading toddler services at her synagogue, where she feels a personal connection to the children and parents who come to pray.
This semester, Maya is taking a class on the Supreme Court, where her research for the We the Future Contest has helped her greatly. Her interest in U.S. history is relatively new, but it is growing quickly, and she cannot wait to see where this opportunity will take her!
Maya Describes Her Winning STEM Project:
“What does an average high schooler know about the US Constitution? In order to start to answer that question, I coded an online quiz (https://mayarobinson613.wixsite.com/constitution/quizzes; click on “General Constitution Quiz”) about the Constitution which I shared with peers.
It turns out that coding a quiz was not quite as straightforward as I imagined that it would be. Though such quizzes may look simple on their surface, even getting my code to open a graphical window with a title and a clickable button was a huge achievement at first. I spent hours fixing problems like making a window disappear when the test-taker is done with a question so the next can pop up; disabling buttons after the user responds so that it is impossible to double-click an answer and get twice the points; and emailing results to my email inbox so that I could track scores and specific answers.
Achieving these goals required me to substantially deepen my knowledge of the computer language Python, including object-oriented programming and graphical user interface programming, as well as to find and utilize helpful code modules in books and online to solve specific problems.
When the general quiz was finished (copy of questions and answers attached; quiz code available on request), I sent it out to peers to collect data.”
Click here to read more about Maya’s winning STEM project, including tables that show data for 15 test-takers, of which 14 go to her high school.
Maya Also Created A Website:
“Of course, quizzes test knowledge, and I wanted to teach as well. So, I also created a larger educational website composed of original explanations that I wrote, along with links to pre-existing informative resources. In doing so, I strengthened both my knowledge of and appreciation for the US Constitution and its history.
Click here to explore Maya’s winning STEM Project website
Click here for answers to Maya’s Quiz Questions!
Our Interview With Maya
Was this the first time you entered the contest?
Yes it was!
How did you hear about the contest?
I found it on a scholarship database with just barely enough time to complete a project of this scale before the deadline. After reading the description, though, I knew it would be well worth my time to apply.
What inspired your work?
I am in my school’s chapter of Girls Who Code, and we created a personality quiz last school year. When I saw this scholarship’s technology category, I felt it would be an exciting chance for me to do a similar project from an entirely different angle – using a different coding language, working with very different subject matter, and building an educational website around my coding project.
What did you learn while creating your entry?
I learned more deeply about the Constitution in order to create the quizzes, landing page, and resources page on my website, gained a deeper appreciation of the history behind it, and greatly improved my Python skills. I also found out that Thomas Jefferson did not sign the Constitution, which had previously escaped my notice.
How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
I have shared my project with many of my friends and classmates in order to both gather information about the pre-existing knowledge level of a typical student at my high school and help them fill in the gaps in their knowledge. In the future, I believe that my project is still a wonderful way to begin conversations about the Constitution outside of class.
How do your friends respond to history or talking about the Constitution?
I have been fortunate to have thoughtful friends who, regardless of their knowledge level, have been enthusiastic about discussing any of my interests. Some of my friends respond to my request to talk about the Constitution with a great deal of information and the desire to have a deep and nuanced conversation, while others are open to learning more about this important topic. I have yet to encounter a friend who has been unwilling to discuss this part of American history with me.
What do you love about U.S. History and the forming of our government?
I love the fact that our government is built to shift over time. We do not have kings, we have three branches of government, each of which has a duty to keep the others in check; Presidents have term limits; and the Constitution can be amended. With adequate power behind a cause, major changes can take place.
Which U.S. historical site would you like to visit?
Of the historical sites that I have already visited, I would most like to revisit the Freedom Trail. I live in the Boston area and visited the Freedom Trail a few times as a small child, and would love to go back both for the nostalgia and to deepen my knowledge of my home city’s history.
Out of the U.S. historical sites that I have not yet had the chance to visit, I would particularly like to visit Mount Vernon. I have learned about George Washington since elementary school as America’s legendary first President, and more recently as a nuanced person who was exceptionally important in the foundation of our country, demonstrated wonderful leadership, and still had important flaws. I believe that in seeing his home – and plantation – I would have the chance to reflect on such a deeply influential President and increase my knowledge on both George Washington and the history of the United States.
Which American historical figure is most influential/inspirational to you?
I think there are so many good answers to this question, but one that feels particularly inspirational is Harriet Tubman. Through her bravery and resourcefulness, she rescued dozens of enslaved people using the Underground Railroad: a connected group of activists and safe houses who helped enslaved people move to states where slavery was illegal.
As a Jew, I find deep meaning in Tubman’s actions. My grandmother’s family, and many others like it, only survived by escaping Nazi-controlled Poland with the help of a network of activists. When others are struggling, Jewish tradition dictates that my people have struggled, so I am obligated to help those around me who are struggling, in ways as large as what Harriet Tubman did, or as small as checking in on the people I care about.
Who is your greatest role model?
While I feel that it would be impossible to pick just one person who is the greatest of all my role models, I am particularly inspired by 19th century mathematician Sofya Kovalevskaya. At a time when women were not welcome in many parts of academia, she broke through barriers and learned an incredible amount, proving to her mentor that the reason he did not see more women in math stemmed from prejudice. Her story, and many like it, inspire me to openly live my truth as a woman who wants to learn and likely pursue STEM. In telling these stories, pursuing STEM myself, and creating an environment where other girls feel comfortable learning whatever they want, I feel I am doing my part to create a world where girls and women do not feel that their gender will prevent them from pursuing their dream career.
What in your life are you most passionate about?
This ties in to my previous answer – I am most passionate about education. Many students feel discouraged for learning certain subjects, especially math, because of teaching styles that feel inaccessible to them. I love showing these students a new way to view math as a subject that is creative and interesting and, most importantly, intuitively understandable with the right approach. When I help one of my peers begin to feel empowered to succeed in classes and experience less anxiety about previously difficult topics, I feel that I have succeeded in an important way.
How do you spend your free time?
I love spending time with friends, baking, and working on interesting math problems when I have free time.
What are your plans for the future?
My career plans are definitely not set in stone, but I am planning on attending Harvard College for the next four years, and I cannot wait to see what opportunities are in store. If I absolutely had to guess, I would say I am likely to major in math or physics and continue in academia.
If you could do one super impactful thing to help people, what would it be?
In Jewish tradition, every individual person is metaphorically viewed as their own universe. I have grown up with the wisdom that if I save one person, it is as if I saved an entire universe. As such, I have the power to shift entire universes through my actions. I believe that an action that looks small from an outside perspective can make a massive difference. When I teach those around me, I impact their universes, and I feel great power in the act of showing my peers a new way to view the subject they are learning, and ultimately the world around them.
Why is the Constitution relevant today?
The Constitution is the document that lays out the blueprint for our entire system of government. I believe that everybody should have at least a baseline understanding of their government in order to be an informed citizen. Having just taken a class on the Supreme Court, I especially think of incredibly influential Supreme Court cases that require an understanding of the Constitution, and what is constitutional, in order to grasp.
Noe Flores, Winner – Middle School STEM
BlogI am very excited and grateful to have been selected as one of the winners. Thank you for this amazing opportunity and the chance to visit Washington D.C. and meet my fellow Constituting America contest winners.
Click Here for Noe’s report on his STEM Project! Click Here to see the 20 surveys he created, distributed, collected and then tabulated from his peers!
Our Interview With Noe
Was this the first time you entered the contest?
Yes, this was my first time entering the contest.
How did you hear about the contest?
My middle school counselor sent out an email with several scholarship opportunities and this one grabbed my attention.
What inspired your work?
Since I was learning about the Constitution in class, I figured it would be a good time to do the survey.
What did you learn while creating your entry?
I learned that my classmates didn’t know too much about the Constitution.
How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Talk to my classmates about how important the U.S. Constitution is to us and why we need to be more aware of the benefits of learning our rights.
How do your friends respond to history or talking about the Constitution?
They don’t really know much about the history of the Constitution or talk about it.
What do you love about U.S. History and the forming of our government?
I get to learn how our government was formed and how we have evolved over the years as a country.
Which U.S. historical site would you like to visit?
I would like to visit the White House and see where all the past Presidents lived.
Which American historical figure is most influential/inspirational to you?
Martin Luther King is most inspirational to me because he abolished racial discrimination and fought for civil rights.
Who is your greatest role model?
My mom and dad because they never give up.
What in your life are you most passionate about?
I am most passionate about Jurassic World, Godzilla, and video games.
How do you spend your free time?
In my free time I like to play video games, read books and play with my dog Rex.
What are your plans for the future?
I plan to become an animator for video games and film.
If you could do one super impactful thing to help people, what would it be?
I would make sure all those without a home or shelter get the help they need to survive and be successful in their lives.
Why is the Constitution relevant today?
Because it created all of our laws and gave us the freedom we have today.