Guest Essayist: Joerg Knipprath


Among 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.

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

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Guest Essayist: Andrew Langer


In 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:

“What are the characters which practice has stampt upon it? Imbecility in the government; discord among the provinces; foreign influence and indignities; a precarious existence in peace, and peculiar calamities from war.”

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”:

“Nearly all the framers who spoke on the subject seemed certain of one statement about the Netherlands; and in this they were mistaken. Nearly all seemed to believe that the decisions of the general government required unanimity of the seven provinces-an even more stringent requirement than in the Continental Congress. But, misled by inaccurate commentaries, they did not know what this requirement meant or how it worked in practice or what significance it had in Dutch politics.”

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:

“[W]hen the records of the Constitutional Convention and the state ratifying conventions are superficially examined, it appears that our heritage from the Netherlands is considerable. The records show that members of the conventions referred to the government of the United Provinces more frequently than to any other modern European government, except that of Great Britain.”

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:

“Given my ideological shift [from “New Dealer” to “anti-statist”], I have also changed my evaluation of federalism. Initially I regarded it as an impediment-minor, perhaps—but still an impediment to good government. Now I regard it as a desirable, though still minor, restraint on the leviathan.”

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:

“It is surprising and to the credit of our ancestors, that these inhabitants of another continent, after a lapse of some two centuries, adopted practically the same measures and arrangements as they did when drafting the Union of Utrecht.”

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:

“It is no wonder our Government should not work well, being formed on the Dutch model where circumstances are so materially different.”

This becomes reflected in Madison’s concluding remarks for Federalist #20, in which he says:

“The important truth, which it unequivocally pronounces in the present case, is, that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals; as it is a solecism in theory; so in practice, it is subversive of the order and ends of civil polity, by substituting violence in place of law, or the destructive coertion [sic] of the sword, in place of the mild and salutary coertion [sic] of the magistracy.”

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.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Chris Burkett

In 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.

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

 

[1] The Federalist ­No. 20

[2] The Federalist ­No. 20

[3] The Federalist ­No. 20

[4] The Federalist ­No. 20

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Guest Essayist: Joerg Knipprath


Historians 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.”

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

 

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Guest Essayist: Chris Burkett


In 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.

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

 

[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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Guest Essayist: Chris Burkett

In 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,

The members of the confederacy are expressly restricted from entering into compacts prejudicial to the empire; from imposing tolls and duties on their mutual intercourse, without the consent of the emperor and diet; from altering the value of money; from doing injustice to one another; or from affording assistance or retreat to disturbers of the public peace. And the ban is denounced against such as shall violate any of these restrictions.

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.

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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Guest Essayist: Joerg Knipprath

Much 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.

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

 

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Guest Essayist: Daniel A. Cotter


America’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:

“The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.”

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:

“The elective mode of obtaining rulers is the characteristic policy of republican government. The means relied on in this form of government for preventing their degeneracy are numerous and various. The most effectual one, is such a limitation of the term of appointments as will maintain a proper responsibility to the people.”

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:

“All nations, under all governments, must have parties; the great secret is to controul them: there are but two ways, either by a monarchy and standing army, or by a balance in the constitution. Where the people have a voice, and there is no balance, there will be everlasting fluctuations, revolutions, and horrors, until a standing army, with a general at its head, commands the peace, or the necessity of an equilibrium is made appear to all, and is adopted by all.”

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:

The first question that offers itself is, whether the general form and aspect of the government be strictly republican. It is evident that no other form would be reconcilable with the genius of the people of America; with the fundamental principles of the Revolution; or with that honorable determination which animates every votary of freedom, to rest all our political experiments on the capacity of mankind for self-government. If the plan of the convention, therefore, be found to depart from the republican character, its advocates must abandon it as no longer defensible.

“What, then, are the distinctive characters of the republican form? Were an answer to this question to be sought, not by recurring to principles, but in the application of the term by political writers, to the constitution of different States, no satisfactory one would ever be found. Holland…has passed almost universally under the denomination of a republic. The same title has been bestowed on Venice, where absolute power over the great body of the people is exercised, in the most absolute manner, by a small body of hereditary nobles…These examples, which are nearly as dissimilar to each other as to a genuine republic, show the extreme inaccuracy with which the term has been used in political disquisitions.

“If we resort for a criterion to the different principles on which different forms of government are established, we may define a republic to be, or at least may bestow that name on, a government which derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behavior. 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.”

(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.

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

 

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Guest Essayist: Joerg Knipprath

 

In 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.

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

 

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Guest Essayist: Joerg Knipprath


In 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.

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

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Guest Essayist: Daniel A. Cotter


Those 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:

“[The Congress shall have Power] … To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

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.

“What is a power, but the ability or faculty of doing a thing? What is the ability to do a thing, but the power of employing the MEANS necessary to its execution? What is a LEGISLATIVE power, but a power of making LAWS? What are the MEANS to execute a LEGISLATIVE power but LAWS? What is the power of laying and collecting taxes, but a LEGISLATIVE POWER, or a power of MAKING LAWS, to lay and collect taxes? What are the proper means of executing such a power, but NECESSARY and PROPER laws?”

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:

“We admit, as all must admit, that the powers of the Government are limited, and that its limits are not to be transcended. But we think the sound construction of the Constitution must allow to the national legislature that discretion with respect to the means by which the powers it confers are to be carried into execution which will enable that body to perform the high duties assigned to it in the manner most beneficial to the people. Let the end be legitimate, let it be within the scope of the Constitution, and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consist with the letter and spirit of the Constitution, are Constitutional.

(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:

“This unity may be destroyed in two ways: either by vesting the power in two or more magistrates of equal dignity and authority; or by vesting it ostensibly in one man, subject, in whole or in part, to the control and co-operation of others, in the capacity of counsellors to him. Of the first, the two Consuls of Rome may serve as an example; of the last, we shall find examples in the constitutions of several of the States. New York and New Jersey, if I recollect right, are the only States which have intrusted the executive authority wholly to single men. Both these methods of destroying the unity of the Executive have their partisans; but the votaries of an executive council are the most numerous. They are both liable, if not to equal, to similar objections, and may in most lights be examined in conjunction.”

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.

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

 

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Guest Essayist: Will Morrisey
GaiusMariusCarthageRuins-18thCentury-JosephKremer


Plutarch 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.

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

 

 

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Guest Essayist: Joerg Knipprath


Rome, 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.

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

 

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Guest Essayist: Ron Meier


Not 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.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List. 

(1) What the founders learned from Cicero // The Observer (ndsmcobserver.com)

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Guest Essayist: Ron Meier
The School of Athens, Raphael, 1509-1511, Apostolic Palace, Vatican City

In 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.

Ron Meier is a West Point graduate and Vietnam War veteran. He is a student of American history, with a focus on our nation’s founding principles and culture, the Revolutionary War, and the challenges facing America’s Constitutional Republic in the 20th and 21st centuries. Ron won Constituting America’s Senior Essay contest in 2014 and is author of Common Sense Rekindled: A Rejuvenation of the American Experiment, featured on Constituting America’s Recommended Reading List. 

(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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Guest Essayist: Joerg Knipprath


It 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.

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

 

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Guest Essayist: Andrew Langer


In 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.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Andrew Langer


In 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,

“should consider one illustrious citizen as a more eligible depositary of the fortunes of themselves and their posterity, than a select body of citizens, from whose common deliberations more wisdom, as well as more safety, might have been expected?”

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:

“History informs us, likewise, of the difficulties with which these celebrated reformers had to contend, as well as the expedients which they were obliged to employ in order to carry their reforms into effect.”

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:

“If these lessons teach us, on one hand, to admire the improvement made by America on the ancient mode of preparing and establishing regular plans of government, they serve not less, on the other, to admonish us of the hazards and difficulties incident to such experiments, and of the great imprudence of unnecessarily multiplying them.”

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:

“A patient who finds his disorder daily growing worse, and that an efficacious remedy can no longer be delayed without extreme danger, after coolly revolving his situation, and the characters of different physicians, selects and calls in such of them as he judges most capable of administering relief, and best entitled to his confidence. The physicians attend; the case of the patient is carefully examined; a consultation is held; they are unanimously agreed that the symptoms are critical, but that the case, with proper and timely relief, is so far from being desperate, that it may be made to issue in an improvement of his constitution…

“Such a patient and in such a situation is America at this moment. She has been sensible of her malady. She has obtained a regular and unanimous advice from men of her own deliberate choice. And she is warned by others against following this advice under pain of the most fatal consequences. Do the monitors deny the reality of her danger? No. Do they deny the necessity of some speedy and powerful remedy? No.”

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.

Andrew Langer is President of the Institute for Liberty.

 

 

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Guest Essayist: Joerg Knipprath

In 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.

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

 

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Guest Essayist: Samuel Postell


 
In 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:

“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.”

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”:

  1. “The regular distribution of power into distinct departments.”
  2. “The introduction of legislative checks and balances.”
  3. “The institution of courts composed of justices holding their offices during good behavior.”
  4. “The representation of the people in the legislature by deputies of their own election.”
  5. “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.”

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.

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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Guest Essayist: Samuel Postell


 

 
In 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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90-Day Study 2022

Essay #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.

Guest Essayist: Ron Meier

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.

Guest Essayist: Ron Meier

Essay #25 — HISTORIC TOPIC #9: The “Sun King,” Louis XIV (The King As Sovereign) –  How they succeeded & how they failed.

Guest Essayist: Joerg Knipprath

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.

Guest Essayist: Joerg Knipprath

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.

Guest Essayist: Joerg Knipprath

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.

Guest Essayist: Tony Williams

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.”

Guest Essayist: Adam Carrington

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.

Guest Essayist: Tom Hand

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.

Guest Essayist: Tom Hand

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.

Guest Essayist: Andrew Langer

Essay #37 — HISTORIC TOPIC #13: The American Declaration of Independence (Musings on Human Nature & the Basis of Government; Revolution) – The genius of the genesis.

Guest Essayist: Tom Hand

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.

Guest Essayist: J. Eric Wise

Essay #39 — THE CONSTITUTION’S WISDOM: Successful WISDOM from FOUNDING FATHERS to PRESERVE the American Declaration of Independence.

Guest Essayist: Tony Williams

Essay #40 — HISTORIC TOPIC #14: Chaos & Experimentation in the Early State Constitutions (Legislative Dominance; Who Makes Constitutions) – The strengths & weaknesses.

Guest Essayist: James C. Clinger

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.

Guest Essayist: Adam Carrington

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.

Guest Essayist: Gary Porter

Essay #43 — HISTORIC TOPIC #15: From the Articles of Confederation to the Constitution (Government in Stasis, What Is/Are the United States) – Strengths & weaknesses.

Guest Essayist: Tom Hand

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.

Guest Essayist: Tony Williams

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.”

Guest Essayist: Gary Porter

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.

Guest Essayist: Tom Hand

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.

Guest Essayist: Eric Sands

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.

Guest Essayist: Gary Porter

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”).

Guest Essayist: Joerg Knipprath

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.

Guest Essayist: Gary Porter

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.

Guest Essayist: Andrea Criswell

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.

Guest Essayist: Tony Williams

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.

Guest Essayist: J. Eric Wise

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.

Guest Essayist: Scot Faulkner

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.

Guest Essayist: Adam Carrington

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.

Guest Essayist: Tony Williams

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.

Guest Essayist: Jay McConville

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.

Guest Essayist: Andrew Langer

Essay #61 — HISTORIC TOPIC #21: The American Civil War: Disunion & Reconstruction (What is the Union; Secession; “An Indestructible; Union Composed of Indestructible States”)

Guest Essayist: Eric Sands

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.

Guest Essayist: Samuel Postell

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.

Guest Essayist:  Samuel Postell

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.

Guest Essayist: Joerg Knipprath

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.

Guest Essayist: Scot Faulkner

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.

Guest Essayist: Andrew Langer

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.

Guest Essayist: Joerg Knipprath

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.

Guest Essayist: Will Morrisey

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.

Guest Essayist: Gary Porter

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).

Guest Essayist: Tony Williams

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.

Guest Essayist: Patrick Garry

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

Guest Essayists: John De Gree and Mike Allen

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.

Guest Essayist: Winfield Rose

Essay #77 — FEDERALIST & ANTI-FEDERALIST’S WISDOM: Counteracting Wisdom of Federalist/Anti-Federalist to the evil and tyranny of Hitler & the Third Reich

Guest Essayist: Winfield Rose

Essay #78 — THE CONSTITUTION’S WISDOM: Counteracting Wisdom in the U.S. Constitution to the evil and tyranny of Hitler and the Third Reich

Guest Essayist: Jeanne McKinney

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.

Guest Essayist: Scot Faulkner

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.

Guest Essayist: David Kopel

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.

Guest Essayist: Andrew Langer

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.”

Guest Essayist: Joerg Knipprath

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.

Guest Essayist: Joerg Knipprath

Guest Essayist: Chris Burkett

How 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

My name is Giovanni Adu-Gyamfi. I am 19 years old, and I am a freshman at The College of New Jersey (TCNJ), where I am majoring in public health. I spent most of my childhood in Old Bridge, New Jersey, but I currently live in Parlin, New Jersey. From a young age, I was fascinated by the world around me, participating in STEM-based activities and taking STEM classes. I enjoy reading, writing, helping others, and spending time with my family. In the future, with a public health degree, I hope to go into research helping regulate the spread of diseases and looking into more ways to prevent them.

 

 

 

Watch Giovanni’s Winning PSA:

Dawson 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
Louis 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
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!

Maya 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.

My name is Noe Flores. I am a 6th grade honors student and live in Fort Worth, Texas.  I enjoy learning and reading and was the runner up for my school Spelling Bee in 3rd grade. I am currently in band and play percussion. My favorite subject in school is science because it’s interesting and at my STEM school we get hands-on learning.  I like playing video games and hope to one day become an animator and create my own video game.  

I 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.

Shaynlin is a 17-year-old senior from Drexel, Missouri. She is the founding chairman and current chairman of the Young Americans for Freedom Chapter at Drexel High School. Shayn is also the president of NHS, FBLA, FCCLA, and Student Council at Drexel High. Throughout high school, she was involved in football, basketball, basketball cheerleading, track and field, dance team, and scholar bowl. In her limited spare time, she enjoys volunteering at Restoration House of Greater Kansas City, attending leadership conferences, and spending time with her family. After she graduates, Shaynlin plans to attend Central Methodist University to Study Business Communications and Graphic Design. She is extremely honored to receive this award and grateful for the patriotism of Cass County, Missouri!

 

 

Watch Shaynlin’s Winning Short Film Below!

Our Interview With Shaynlin!

Was this the first time you entered the contest?
Yes! This is the first time that I have entered any video contest.

How did you hear about the contest?
I was searching for scholarship opportunities when I stumbled across Constituting America’s website.

What inspired your work?
I was inspired by all of the patriotism that is represented in my community and school. This video gave me a really great opportunity to visit places in my area that I usually wouldn’t take much time to appreciate.

What did you learn while creating your entry?
While creating my entry, I came to the realization that we are constantly surrounded by signs of freedom and independence. We may not always see the beauty that surrounds us, because you have to be looking for it in order to truly admire it.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Through my leadership as the chairman of the Drexel Young Americans for Freedom (YAF), I am an advocate for the Constitution every single day at my school. This is something that may bother other people, but I am always willing to discuss my thoughts and the importance of the U.S. Constitution with those that agree or disagree with my views. YAF gives students the opportunity to meet a few times each year to talk about our rights and how to preserve them.

How do your friends respond to history or talking about the Constitution?
I have many friends that enjoy learning and talking about American history and the Constitution, however, it is a goal of mine to get more students to understand how important knowledge of history and the Constitution is.

What do you love about U.S. History and the forming of our government?
I love everything about the founding of the United States! Every one of our founding fathers has such an incredible story. The most amazing thing about America’s founding is the fact that all odds were against the rebellion, and it is a miracle that freedom prevailed.

Which U.S. historical site would you like to visit?
I would love to visit Mount Rushmore. I have never traveled to South Dakota before, and I think that it would be really cool to see the sculpture in person.

Which American historical figure is most influential/inspirational to you?
Sergeant William Harvey Carney is definitely the most inspirational historical figure that I have ever encountered. He served in the Civil War, fighting for his own freedom. He entered the line of fire to stop the American flag from touching the ground. Sergeant Carney survived several gunshot wounds, and became the first African American to receive a Medal of Honor.

Who is your greatest role model?
Ronald Reagan is a role model that has really impacted my life. I attended the 2021 Ronald Reagan Boyhood Home Inaugural Program in Dixon, Illinois, and I got the chance to explore the town that he grew up in. His character, leadership, and accomplishments have influenced my life immensely.

What in your life are you most passionate about?
I am most passionate about making a difference for my country, and giving back to my community. I am involved in many organizations that prioritize community service, and I currently volunteer at Restoration House of Greater Kansas City. While I don’t know what life has in store for me, I am certain that I will find time for charitable acts.

How do you spend your free time?
During my spare time, I enjoy spending time with my family, volunteering, and attending leadership conferences.

What are your plans for the future?
I am planning to attend Central Methodist University to study Business Communications and Graphic Design. During my time in college, I will participate in many internships and job shadowing opportunities in order to find a job that I am passionate about and excel at.

If you could do one super impactful thing to help people, what would it be?
I would really like to do something to give back to veterans that have fought for our country. I have considered working for or starting my own nonprofit organization that would accomplish this goal. This really interests me, because many nonprofit organizations have really inspired me throughout my life.

Why is the Constitution relevant today?
The Constitution is more relevant today than ever before, because we continue to inch further and further away from the liberty that the Constitution provides. The Constitution will be relevant as long as America exists, because it lays the foundation of the government and provides U.S. citizens with their freedoms and rights.

As educators, we understand that not all children think, process, or learn alike. Therefore, at Grapevine Faith we have the unique opportunity to offer STEAM to our students. We are passionate about teaching students that scientific principles and artistic expression work together with such incredible harmony to reach all types of learners. The genius, Leonardo da Vinci said it best, “To develop a complete mind: study the science of art; Study the art of science.”

We hope you will enjoy our Constitution lesson plan coming from two subject area perspectives.

Thank you,
Heather Lauden and Monique Gorman

Click Here For Their Winning STEAM Constitution Lesson Plan!

Our Interview With Monique & Heather

Was this the first time you entered the contest?
Monique: No, I have entered the contest multiple years.
Heather: yes!

How did you hear about the contest?
Monique: A fellow co-worker had scheduled you to come and speak to our students.
Heather: Through getting to know Cathy/Janine after a presentation at our school

What inspired your work?
Monique: We have had the privilege of having past winners, and wanted to try again.
Heather: We thought it would be fun to write a STEAM (science, technology, engineering, art and math) lesson plan about a topic that is usually only taught in social studies or history classes.

What did you learn while creating your entry?
Monique: Teamwork on a lesson plan can be enriching and fun at the same time.
Heather: How the original documents are stored and preserved.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Monique: We teach about the importance of our Constitution at Grapevine Faith.
Heather: By teaching our lesson plan in our STEAM classes and also sharing our lesson plan with other teachers, such as social studies and language arts.

How do your friends respond to history or talking about the Constitution?
Monique: Positively
Heather: They realize how interesting it actually is and are reminded of its importance and applicability to our freedom, even (and especially!) today.

What do you love about U.S. History and the forming of our government?
Monique: That the Bible was fundamental.
Heather: I love the fact that our government was founded on democratic, “we the people” processes.

Which U.S. historical site would you like to visit?
Monique: Plymouth and/or Jamestown
Heather: Independence Hall in Philadelphia.

Which American historical figure is most influential/inspirational to you?
Monique: Ronald Reagan
Heather: Abraham Lincoln

Who is your greatest role model?
Monique: My family (Dad, Mom, and older brother)
Heather: Jesus

What in your life are you most passionate about?
Monique: Teaching and creating
Heather: My family and of course, inspiring kids through teaching.

How do you spend your free time?
Heather: Any kind of craft, sewing, etc. Spending time with my family.

What are your plans for the future?
Heather: To retire with my husband and travel.

If you could do one super impactful thing to help people, what would it be?
Heather: Prove to people that they are important and that they are seen and loved by at least one other person.

Why is the Constitution relevant today?
Heather: More than ever, with what is going on overseas, we should be thankful for our freedom and the rights, as well as protection that we have as Americans. We all have the constitution to thank for that!

Carson is a 15-year-old homeschooled freshman from Austin, Texas. He is a nationally competitive rower, racing in regattas across the country. As well as being a successful rower, he is also an assistant coach teaching introductory courses for teens and adults. When he is not studying, Carson enjoys reading, writing, and documentary filmmaking. Last year, he won the middle school division of C-SPAN’s national StudentCam documentary competition. Carson is also the leader for his Youth Bible Study at the church he attends, Austin Ridge. In his free time, Carson enjoys volunteering at the Central Texas Food Bank, amassing over 500 hours of time there over the last 4 years. 

Watch Carson’s Winning Essay On Film 

My name is Ella Dumas. I am in the 6th grade at Grapevine Faith Christian School in Grapevine, Texas. I love music and play the piano for our school Chapel Band. I love trying new sports and playing all types of games. This past year at Faith, I was on the basketball team and swim team. My favorite sport is volleyball, and I have been playing competitive club volleyball for 4 years. I have also enjoyed STEM activities, and in 5th grade I competed with my middle school robotics club. My friends and I have enjoyed going to local escape rooms and I loved having to solve the problems and clues. Last year we did online escape rooms for class and it was always super fun and a great way to learn. For this project, I thought I could create something people could play that was fun and enjoyable that could help them learn. When making the Constitution Escape Room, I was able to learn about coding to make the game work as I wanted. I hope people enjoy playing the game and learning more about the Constitution!

Click here to visit Ella’s escape room!

 

Ava Watts is 12 years old and in sixth grade at Grapevine Faith Christian School in Grapevine, Texas.  Making the PSA for the “We The Future” contest came naturally because she loves performing in front of a camera as well as on stage as a competitive dancer.  Ava has been dancing since the age of two and started competing at the age of six.  It is her passion and joy and one day she hopes to make it a career. Along with dance, Ava enjoys playing a variety of sports.  She was a member of Grapevine Faith’s Junior High basketball team this year, is on the Speech and Debate team, and will be a Junior High cheerleader in the fall.

 

 

 

Watch Ava’s Winning PSA 

 

My name is Emily Tan – I am a 7th grader at South Forsyth Middle School in Cumming, GA. Social Studies and History has always interested me, and this STEM project was a new experience, as this was the first complete website I have created. Soon after, I started creating more websites on different topics. Currently, I am part of my school’s FBLA and HOSA, which are two major clubs in South Forsyth Middle. I am also part of my school’s Symphonic Band as a clarinet player and recently participated in GMEA All-State Middle School Band. Outside of school band, I play piano, enjoy drawing and play tennis as side activities. I have participated in the school Creative Writing Workshop and VEX Robotics. This STEM project combined several of my passions and makes for an interesting contest to compete in! I am truly grateful for everyone who supported me, allowing me to be able to get this far. This accomplishment enhanced my attentivity and love for Social Studies and History and I am excited to see what else is in store!

Click Here To Explore Emily’s Winning STEM Project!

 

Nicholas Heiniger was born and raised in Marietta, Georgia. Currently, he is attending the University of Georgia where he is majoring in international affairs. From a young age, he has shown interest in world languages and cultures by taking Spanish and Latin language classes in high school and studying Russian through the National Scholarship Language Initiative for Youth (NSLI-Y). He also enjoys learning about the law and government, and he has participated in the Atlanta Bar Association Summer Law Internship Program. He hopes to combine all of these interests in the future by working as a diplomat. In his free time, Nicholas likes to play table tennis and chess.

Click here to view Nick’s Winning STEM Project or scroll down to watch his video!

 

Adam Zheng 

Adam Zheng is a 16-year old senior at Williamsville North High School, currently living in Western New York. His love for filmmaking began during the onset of the pandemic, and he has since spent hundreds of hours mastering its art. He enjoys creating films to educate, to raise awareness, and to document memories. 

As an independent filmmaker, Adam’s work has earned him Best Young Live-Action Director in the Don Bosco Global Youth Film Festival, two category awards in the Golden Lion Awards High School Film Festival, Finalist in the New York Times Coming of Age in 2020 Contest, and more. Filmmaking and engineering are his two greatest passions, and although he is planning to pursue a career in engineering, creating films will always be an important part of his life. 

Beyond filmmaking, Adam is also an avid runner, a violinist, an Eagle Scout, a Regional Champion in Science Olympiad, a National Merit Semifinalist, and an AP Scholar with Distinction. With his multitude of interests and abilities, he hopes that, no matter what he pursues, he will one day be able to make a positive impact on the world that will last to benefit generations upon generations into the future.

Watch Adam’s Winning PSA Below:

 

 

Jake R. Cairns
Jake is a 17-year-old from Evans, Georgia who attends Evans High School as a Junior. He has played lacrosse for four years and is currently the varsity goalie for the Evans Knights! Jake’s hobbies are doing anything outdoors and music. He enjoys fishing, camping, hiking, boating, hunting and exploring all over the North Georgia Appalachian Mountains, waterfalls and rivers. When Jake is not busy exploring the great outdoors, you will find him at the piano playing and composing songs. Jake did not find his love for music until the pandemic hit in 2020. Bored and stuck in the house, he taught himself to read, play and compose music on the piano and guitar. Jake has been accepted to Toccoa Falls College where he plans to major in Outdoor Leadership and minor in Worship Music. This path combines both of his passions for the outdoors and music. After college Jake hopes to work for the Georgia Department of Natural Resources as a game warden and continue to play music whenever possible.

Coralyn M. Cairns
Coralyn Cairns is a Freshman at Lakeside Highschool in Georgia and is enrolled in the International Baccalaureate program there. She is involved in Student Government, Science Olympiad, and the school’s production of Aladdin. Some other musicals she has played in are 101 Dalmatians and a Christmas Carol. Because of her love of fine arts, at one-point Coralyn whole-heartedly focused on acting, singing, and modeling. However, she now focuses on academics and is at the top of her class. While her favorite subject is science, she is also very passionate about foreign languages. Currently, she takes both Spanish and French, and hopes to start Latin soon. Additionally, Coralyn is a Sunday School teacher at her church on the weekends. Over the summer, she enjoys swimming competitively with her friends and sewing clothes. In the future, Coralyn wants to go on to be a pathologist. Coralyn’s family is very musical, with her father, who sings and plays the guitar, being her inspiration. He also teaches political science which has helped instill in her the importance of the Constitution.

Jake and Coralyn would also like to say thank you and express how proud they are of their older brother, Wyatt, who is currently serving in the United States Marine Corps.

Listen To Their Winning Song Below:

 

Our Interview With Coralyn & Jake

Was this the first time you entered the contest?
Carolyn: This submission was my first for Constituting America.
Jake: I have not entered this contest before.

How did you hear about the contest?
Carolyn: I have a myOptions account through my school, and I occasionally peruse on there. Over the summer, I saw the contest on the scholarships page, and I was excited because it sounded like something I would really like to do.
Jake: My sister learned about the contest and asked me to partner up and create the song.

What inspired your work?
Carolyn: I think for writing lyrics, you have to find an inspiration that just opens the creative floodgates in your brain. Like a catchy melody or rhyming words that just stick in your mind. That’s what happened for me. Before I wrote the lyrics, we did a lot of research about the actual information, but because most people know the gist of the first amendment, we kind of overlooked it. However, I decided to look back at it, and I found the words press and redress. That immediately brought the building melody that we have in the chorus to my mind and we just built off of that.
Jake: The favorite artist who originally led me to the piano is Elton john. Much of my piano playing is inspired by his music and playing style.

What did you learn while creating your entry?
Carolyn: I have been writing my own lyrics since I was like maybe 7 or 8, but I have never actually put them to music. My brother plays other pieces or creates songs occasionally and then adds lyrics to them, but he doesn’t start with the lyrics. So I think we both learned how to mesh our two styles, musical backgrounds, and ideas together to make something cool.
Jake: I learned a great deal while creating this piece about the composition of a song and how to create distinct sections like a verse, pre chorus, and chorus.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Carolyn: I am currently taking an AP Government and Politics course and it has opened my eyes. I have a dad who teaches these concepts for a living and I couldn’t have told you most of the stuff about the Constitution that I know now a year ago. So for people who want to learn more about our country’s origins, I would recommend they take a Government course. Just learning about all the facets to the Constitution and the intentions behind the words of our Founders instills in you the Constitution’s importance. In the week that I am writing this, my class is talking about the President’s delegated powers along with Federalist 70, and how the Founders had so much for thought and inspiration to come up with a system that made an energetic President, yet still have a Congress that checks their power. To have created this document that has upheld our country’s values for so long, is absolutely crazy to me. For anyone who wants to hear, I can go on.
Jake: I plan to spread the importance of the constitution to my peers by starting conversation about current political issues. If I can shed more light on topics like gun control and social media censorship, the Constitutional Amendments will better be understood among my peers.

How do your friends respond to history or talking about the Constitution?
Carolyn: I moved school zones this year to be able to take part in the IB program in our county. I had to make all new friends. However, the group of people I am surrounded by are extremely bright and curious people. I have always had friends who were invested in their education, but it is refreshing to be around people who also care deeply about truly learning. All year my Government course has challenged us, but we help each other out, not only to receive good grades, but also because we are interested in the Constitution and our history and want to collaborate. It is a difficult class, but most of my friends would say it is one of their favorite classes.
Jake: The majority of my friends enjoy conversation about the constitution and American history, although most lack any concern of it being degraded or taken away.

What do you love about U.S. History and the forming of our government?
Carolyn: I love what I talked about earlier. Just the careful intention behind every single word of our Constitution. And also I think the unity of early America is truly inspiring. As human beings we have always had different opinions, but against all odds we fought for John Locke’s life, liberty, and (Thomas Jefferson’s change) the pursuit of happiness. Plus, after the Constitution’s ratification, the entire country was like, “Yep, we want Washington”. With how fractured America is now, I find the unity very admirable.
Jake: The thing I love most about United States history and the formation of its government is the focus on limited governmental power. The founding fathers’ focus was on individual freedom and liberty. While the government has expanded today the expansions are progressive and are used to help Americans so it still carries on a tradition of a people first government.

Which U.S. historical site would you like to visit?
Carolyn: I would like to visit the White House. I went to Washington, D.C. in 6th grade and we were supposed to visit the White House, but the tour got cancelled. Out of all the places we went, I would have liked that the most. The White House is the home and office of every President to have ever lived, and the President is the energy and face of America.
Jake: I would like to visit Mt. Rushmore and see the massive sculptures of the presidents.

Which American historical figure is most influential/inspirational to you?
Carolyn: I would say the most influential historical figure to me would have to be First Lady Abigail Adams. Not only was she an advocate for women’s education, but also an advocate for women’s rights and the abolition of slavery. #RememberTheLadies
Jake: My most influential and inspiring historical figure is Thomas Jefferson. I completely agree with the stance Jefferson took with keeping a small central government and his focus on free speech.

Who is your greatest role model?
Carolyn: My greatest role model would be my mother. She has always worked so hard for my siblings and I, and is super supportive. When I wanted to focus on acting, singing, and modeling, she was right there. When I’m sad, she uplifts me. When I wanted to switch schools for IB, even though it would be harder to get me there, she was on board. My mom has very few flaws, and I would say that I have corrected most of them. Since I have been able to recommend changes to her outfits, they have been much better. She and I are best friends and I wouldn’t change that for the world.
Jake: Elton John and Billy Joel are my biggest role models, and I hope to one day make as unique and beautiful music as they did in the 1970s.

What in your life are you most passionate about?
Carolyn: I think I am most passionate about medicine and science. A few years ago, I would have said singing was my main passion, but in recent years my love for everything scientific has increased tenfold, specifically in the area of pathology. I am an incredibly curious and analytical person and I feel like that’s where I can make my impact in the world.
Jake: In life, I am most passionate about music and the outdoors. I love to hunt and camp along with playing piano and guitar.

How do you spend your free time?
Carolyn: I spend my free time sewing clothes, bags, stuffed animals, etc. I also like to swim competitively, record songs with my brother (I guess you know that), participate in clubs and plays at school, and volunteer at my church.
Jake: I am the starting goalie of my high school lacrosse team, and when I’m not playing lacrosse I play and write music on my piano.

What are your plans for the future?
Carolyn: When I go off to college, I want to major in some sort of pre-med program and minor in one of my languages. Then I want to go to medical school and hopefully intern at a medical examiner’s office. That’s because, at least right now, I want to be a forensic pathologist. As for short-term, I hope to be at the top of my class and receive an IB diploma when I graduate highschool.
Jake: I would like to become a Georgia park ranger and work in the state parks I frequently go camping and hiking in.

If you could do one super impactful thing to help people, what would it be?
Carolyn: If I could do one super impactful thing in my life, I would establish more medical centers around the globe. The most important aspect of medicine is prevention and there are so many places around the world that need more medical care. The centers would be used to provide yearly check-ups, life-saving services, and education about taboo subjects
clouded with misinformation to communities who don’t have those resources.
Jake: I would like to work as a park ranger and help prevent harm to the forests of America, so often these parks are polluted and misused by people and I would like to help protect them.

Why is the Constitution relevant today?
Carolyn: The Constitution is incredibly relevant today. It was and still is the leading example of a free and democratic government. It provides the blueprint for our expertly balanced government, and even accounts for modern day issues. For modern day issues from taxes to the economy to foreign policy, the Constitution delegates powers to our leaders. Being familiar with the Constitution allows citizens to be able to be active members of America’s political process and understand what’s going on.
Jake: Now more than ever certain constitutional rights are being debated over like the continued push for gun control and censorship on free opinions. I feel more and more Americans are ignorant of the rights they possess and why they are important.

Benjamin Moak, age 7, is from Parachute, Colorado. He is an avid video game player, four wheeler rider and loves shark week! His big sister Halley was our inaugural poem winner in 2010, so apparently his talent runs in the family!

Click here to read Benjamin’s winning poem!

Rachel Xu is a sophomore in the International Baccalaureate program at Eastside High School. She is involved with the Student Government Association as the acting vice president representing 10th grade, participates in varsity Girls’ Weightlifting team, having won in district and regionals, serves on the PALS Leadership Council, and is actively involved in Mu Alpha Theta and the Health Occupations Students of America club. Outside of campus, she is a member of the UF Classical Guitar Ensemble and the local Annasemble Orchestra. In her free time, she enjoys volunteering with local churches, nonprofits, and animal shelters, and her hobbies include writing and visual art, of which she has won numerous related essay, poetry, and art contests in the past.

Click Here to Read Rachel’s Winning Essay!

Our Interview With Rachel

Was this the first time you entered the contest?
Yes!

How did you hear about the contest?
Google search

What inspired your work?
Seeing the efforts of American families and active citizens across the country on social media and in the news trying to reassert their unalienable First Amendment rights to free speech, petition, and protest and, in doing so, advocate for the causes they believe to be most important and patriotic.

What did you learn while creating your entry?
By researching the failure of historical empires and the ensuing downfalls of countless political and social revolutions around the world in the last few centuries, I gained a great deal of knowledge about world history, change and continuities in global processes, and, above all else, the ineffable genius of our country’s system of government as delineated in America’s founding document, the Constitution.

How do you plan to spread the word this year to your peers about the importance of the U.S Constitution?
Through social media engagement, one-on-one discussions, sharing relevant posts, and visiting historically significant locations and landmarks.

How do your friends respond to history or talking about the Constitution?
Like me, they’re very interested in exchanging ideas and sharing different perspectives on the nature of our Bill of Rights and Constitutional Amendments, especially as they relate to what we’re studying in civics and recent newsworthy events. We often enjoy having discussions about the nuanced modern interpretations of the founding documents, and take pride in being able to analyze and respond to questions about U.S. history in class.

What do you love about U.S. History and the forming of our government?
I love dissecting the fundamental guiding philosophies and ethical principles underlying our Founding Fathers’ central outlooks on how to run this country as a democracy and republic, aligning the dogma of Enlightenment thinkers with radically innovative ideas at the time of civil liberties, religious protections, and legal representation for all.

Which U.S. historical site would you like to visit?
The Statue of Liberty, because of its symbolic relevance as an international talisman of American freedom, justice, and equality, all core principles in the Declaration of Independence, as well as a beacon of hope for generations of immigrant families like my own arriving in this strange new land searching for an opportunity to begin anew and reinvent themselves.

Which American historical figure is most influential/inspirational to you?
Alexander Hamilton, for his role in crafting the building blocks for our federal government, championing the ratification of our Constitution, and altogether embodying the American dream of a man who rose from obscurity and impoverished squalor into the most elevated, stratified political spheres of the greatest country on the face of the Earth.

Who is your greatest role model?
Martin Luther King Jr., a man of impeccable dignity and righteousness who, above all else, viewed peaceful and nonviolent, but altogether meaningful and justified, political protest as the most moral and effective manner of galvanizing legislative and cultural progress.

What in your life are you most passionate about?
Defending the rights of the voiceless, whether that be through my work as a volunteer, my intended career going into the medical field, and, hopefully, through my writing and publications as a student right now.

How do you spend your free time?
In my free time, I enjoy sketching, biking, reading, crafting stories and poetry, badminton, learning languages, volunteering, listening to music, etc.

What are your plans for the future?
I plan on attending university, majoring in the scientific/medical field, and eventually obtaining a career in public health or affiliated clinical practices where I am able to aid epidemiological research efforts and promote the wellbeing of families and neighborhoods in my community.

If you could do one super impactful thing to help people, what would it be?
I would dedicate my weekends to volunteering with local nonprofits, whether that be animal shelters, daycares, churches, food banks, Habitat for Humanity, libraries, retirement homes, etc.

Why is the Constitution relevant today?
It guarantees rights and freedoms to the citizens of this country, and acts as a blueprint for what our leaders and we as citizens should be doing to ensure our liberties and Constitutional privileges moving forward in these trying times as we continue to confront issues of partisan polarization, infringements on free speech, political corruption, inequality, and more.

April 10, 1788

Source: Ashbrook Center – Teaching American History

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.

Perhaps no restraints are more forcible, than such as arise from responsibility to some superior power. — Hence it is that the true policy of a republican government is, to frame it in such manner, that all persons who are concerned in the government, are made accountable to some superior for their conduct in office. — This responsibility should ultimately rest with the People. To have a government well administered in all its parts, it is requisite the different departments of it should be separated and lodged as much as may be in different hands. The legislative power should be in one body, the executive in another, and the judicial in one different from either — But still each of these bodies should be accountable for their conduct. Hence it is impracticable, perhaps, to maintain a perfect distinction between these several departments — For it is difficult, if not impossible, to call to account the several officers in government, without in some degree mixing the legislative and judicial. The legislature in a free republic are chosen by the people at stated periods, and their responsibility consists, in their being amenable to the people. When the term, for which they are chosen, shall expire, who will then have opportunity to displace them if they disapprove of their conduct — but it would be improper that the judicial should be elective, because their business requires that they should possess a degree of law knowledge, which is acquired only by a regular education, and besides it is fit that they should be placed, in a certain degree in an independent situation, that they may maintain firmness and steadiness in their decisions. As the people therefore ought not to elect the judges, they cannot be amenable to them immediately, some other mode of amenability must therefore be devised for these, as well as for all other officers which do not spring from the immediate choice of the people: this is to be effected by making one court subordinate to another, and by giving them cognizance of the behaviour of all officers; but on this plan we at last arrive at some supreme, over whom there is no power to controul but the people themselves. This supreme controling power should be in the choice of the people, or else you establish an authority independent, and not amenable at all, which is repugnant to the principles of a free government. Agreeable to these principles I suppose the supreme judicial ought to be liable to be called to account, for any misconduct, by some body of men, who depend upon the people for their places; and so also should all other great officers in the State, who are not made amenable to some superior officers. This policy seems in some measure to have been in view of the framers of the new system, and to have given rise to the institution of a court of impeachments — How far this Court will be properly qualified to execute the trust which will be reposed in them, will be the business of a future paper to investigate. To prepare the way to do this, it shall be the business of this, to make some remarks upon the constitution and powers of the Senate, with whom the power of trying impeachments is lodged.

The following things may be observed with respect to the constitution of the Senate.

1st. They are to be elected by the legislatures of the States and not by the people, and each State is to be represented by an equal number.

2d. They are to serve for six years, except that one third of those first chosen are to go out of office at the expiration of two years, one third at the expiration of four years, and one third at the expiration of six years, after which this rotation is to be preserved, but still every member will serve for the term of six years.

3d. If vacancies happen by resignation or otherwise, during the recess of the legislature of any State, the executive is authorised to make temporary appointments until the next meeting of the legislature.

4. No person can be a senator who has not arrived to the age of thirty years, been nine years a citizen of the United States, and who is not at the time he is elected an inhabitant of the State for which he is elected.

The apportionment of members of Senate among the States is not according to numbers, or the importance of the States; but is equal. This, on the plan of a consolidated government, is unequal and improper; but is proper on the system of confederation — on this principle I approve of it. It is indeed the only feature of any importance in the constitution of a confederated government. It was obtained after a vigorous struggle of that part of the Convention who were in favor of preserving the state governments. It is to be regretted, that they were not able to have infused other principles into the plan, to have secured the government of the respective states, and to have marked with sufficient precision the line between them and the general government.

The term for which the senate are to be chosen, is in my judgment too long, and no provision being made for a rotation will, I conceive, be of dangerous consequence.

It is difficult to fix the precise period for which the senate should be chosen. It is a matter of opinion, and our sentiments on the matter must be formed, by attending to certain principles. Some of the duties which are to be performed by the senate, seem evidently to point out the propriety of their term of service being extended beyond the period of that of the assembly. Besides as they are designed to represent the aristocracy of the country, it seems fit they should possess more stability, and so continue a longer period than that branch who represent the democracy. The business of making treaties and some other which it will be proper to commit to the senate, requires that they should have experience, and therefore that they should remain some time in office to acquire it. — But still it is of equal importance that they should not be so long in office as to be likely to forget the hand that formed them, or be insensible of their interests. Men long in office are very apt to feel themselves independent [and] to form and pursue interests separate from those who appointed them. And this is more likely to be the case 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. For these reasons I would shorten the term of their service to four years. Six years is a long period for a man to be absent from his home, it would have a tendency to wean him from his constituents.

A rotation in the senate, would also in my opinion be of great use. It is probable that senators once chosen for a state will, as the system now stands, continue in office for life. The office will be honorable if not lucrative. The persons who occupy it will probably wish to continue in it, and therefore use all their influence and that of their friends to continue in office. — Their friends will be numerous and powerful, for they will have it in their power to confer great favors; besides it will before long be considered as disgraceful not to be re–elected. It will therefore be considered as a matter of delicacy to the character of the senator not to return him again. — Every body acquainted with public affairs knows how difficult it is to remove from office a person who is [has?] long been in it. It is seldom done except in cases of gross misconduct. It is rare that want of competent ability procures it. To prevent this inconvenience I conceive it would be wise to determine, that a senator should not be eligible after he had served for the period assigned by the constitution for a certain number of years; perhaps three would be sufficient. A farther benefit would be derived from such an arrangement; it would give opportunity to bring forward a greater number of men to serve their country, and would return those, who had served, to their state, and afford them the advantage of becoming better acquainted with the condition and politics of their constituents. It farther appears to me proper, that the legislatures should retain the right which they now hold under the confederation, of recalling their members. It seems an evident dictate of reason, that when a person authorises another to do a piece of business for him, he should retain the power to displace him, when he does not conduct according to his pleasure. This power in the state legislatures, under confederation, has not been exercised to the injury of the government, nor do I see any danger of its being so exercised under the new system. It may operate much to the public benefit.

These brief remarks are all I shall make on the organization of the senate. The powers with which they are invested will require a more minute investigation.

This body will possess a strange mixture of legislative, executive and judicial powers, which in my opinion will in some cases clash with each other.

1. They are one branch of the legislature, and in this respect will possess equal powers in all cases with the house of representatives; for I consider the clause which gives the house of representatives the right of originating bills for raising a revenue as merely nominal, seeing the senate be authorised to propose or concur with amendments.

2. They are a branch of the executive in the appointment of ambassadors and public ministers, and in the appointment of all other officers, not otherwise provided for; whether the forming of treaties, in which they are joined with the president, appertains to the legislative or the executive part of the government, or to neither, is not material.

3. They are part of the judicial, for they form the court of impeachments.

It has been a long established maxim, that the legislative, executive and judicial departments in government should be kept distinct. It is said, I know, that this cannot be done. And therefore that this maxim is not just, or at least that it should only extend to certain leading features in a government. I admit that this distinction cannot be perfectly preserved. In a due ballanced government, it is perhaps absolutely necessary to give the executive qualified legislative powers, and the legislative or a branch of them judicial powers in the last resort. It may possibly also, in some special cases, be adviseable to associate the legislature, or a branch of it, with the executive, in the exercise of acts of great national importance. But still the maxim is a good one, and a separation of these powers should be sought as far as is practicable. I can scarcely imagine that any of the advocates of the system will pretend, that it was necessary to accumulate all these powers in the senate.

There is a propriety in the senate’s possessing legislative powers; this is the principal end which should be held in view in their appointment. I need not here repeat what has so often and ably been advanced on the subject of a division of the legislative power into two branches — The arguments in favor of it I think conclusive. But I think it equally evident, that a branch of the legislature should not be invested with the power of appointing officers. This power in the senate is very improperly lodged for a number of reasons — These shall be detailed in a future number.

JANUARY 23, 1944 – NOVEMBER 1, 2021

Constituting America thanks:

Janice Gauntt

Barbara Edstrom

Cathy Gillespie

For your generous donations in Mr. Agee’s name.

 

Mr. Agee was Constituting America Founder Janine Turner’s uncle and board member Janice Gauntt’s brother. “Stan was known for his robust, positive spirit. He was an avid reader, intellectually curious, and a dedicated hard worker. He was a very generous man to many. There was never a doubt of his deep affection for his family, country, state or city. He beamed with pride at the mere mention of his family, who were the center of his life.” Click Here to view Mr. Agee’s Obituary and learn more about his remarkable life and legacy. Click here to make a donation in Mr. Agee’s name.

December 26, 1936 - December 12, 2021

Constituting America thanks:

Don Hay
Mary Jeanne Cooke
Cher McCoy
Mark & Carolyn Clapp
Janet Barton
Chris Burns
Linda Gillespie
Jane Lukes
Sharla Metze Davenport
Dorothy & Rod Dickson-Rishel
LaRawn Scaife Rhea
Zelda Shute
Sharyn Taets
Cathy Tripodi

For your generous donations in Mrs. Hay’s name.

Betty Hay was Constituting America President Cathy Gillespie’s mother. She was an active member of the DAR, Dallas’ Jane Douglas Chapter, and volunteered in their school outreach program. Mrs. Hay was an enthusiastic supporter and volunteer for Constituting America and a continual inspiration to Cathy and all who were blessed to have her in their lives.

Click Here to view Mrs. Hay’s Obituary and learn more about her remarkable life and legacy. Click here to make a donation in Mrs. Hay’s name.

March 23, 1979, 1941 – July 24, 2021

Constituting America thanks Bill Kohnke and Nancy Quinn for their generous donation in memory of  SFC Alex J. Hytowitz. Alex served his country for over 20 years as member of the U.S. Army Reserve and a member of the Georgia Army National Guard. He was deployed in two major theaters of operation: Kuwait, in support of the 2003 invasion of Iraq and Bagdad, Iraq in support of Operation Iraqi Freedom. His third deployment was to Afghanistan in support of Operation Enduring Freedom.

Alex was awarded the Combat Infantry Badge in Iraq and the Bronze Star Medal for actions in combat in Afghanistan. Alex achieved the rank of Sergeant First Class and was admired by his peers and subordinates alike.

Click Here to learn more about SFC Alex J. Hytowitz’s amazing life and legacy!

September 16, 1941 – April 27, 2021

Constituting America thanks Geyer Dybesland for her generous donation in her mother’s memory.  Mrs. Wise attended Constituting America’s Hamilton/Jefferson debate with her grandchildren and bought many copies of Our Constitution Rocks to distribute to her friends’ grandchildren! She was an active member of the Lady Washington Chapter of the Daughters of the American Revolution and The National Society of The Colonial Dames in the State of Texas. She also served as a docent with the Bayou Bend Docent Organization for many years. She was a long-time board member of the Brown County Museum of History. Mrs. Wise was a patriot, through and through!

Click Here to view Mrs. Wise’s Obituary and learn more about her remarkable life and legacy.

December 19, 1938 – February 4, 2021
Constituting America thanks our board member Mrs. Janice Gauntt and friend Jan Wallace for their generous donation in Mrs. Polk’s memory.  Mrs. Polk was an enthusiastic and generous supporter of Constituting America and a respected Texas real estate broker.
Click Here to view Mrs. Polk’s Obituary and learn more about her remarkable life and legacy.
Essay 90 – Guest Essayist: William B. Allen

On this occasion I beat an old horse, just to prove that he is not dead. In this task I am not unlike the rhapsode, Ion, who kept Homer alive by memorizing Homer’s entire poems and reciting them at every opportunity. Unlike Ion, however, I trust that I do not mistake the wisdom of the authors for the wisdom of the rhapsode.

The relation between the Declaration and the Constitution has a different affect today than it did in 1860, when enemies to the more perfect union could find no pillar bearing more weight – and thus to be dislodged – than what they called the “self-evident lie” that “all men are created equal.” Those critics insisted that men indeed are not by nature made equal, nor should be. Today’s enemies of the more perfect union believe that “all men” in 1776 only meant all white males and, moreover, that not even they were by nature made equal though they should be. These critics insist, however, that what nature and history refused to humankind law can create (and they would indeed have all men equalized, the Constitution notwithstanding).

In 1860 nothing and no one so stoutly resisted the enemies of the Declaration than the Defender of the Constitution. Today nothing and no one so stoutly resist the enemies of the Constitution than the Defender of the Declaration. Abraham Lincoln established at Gettysburg that the nation “conceived in liberty” and confirmed “in the proposition that all men are created equal” must conduct its affairs through limited, constitutional union. Today we require to learn that limited, constitutional union can only be justified on the basis of the Declaration of Independence. What we mean, then, when we say that the Declaration of Independence and the Constitution are best friends, is that they are necessary and reciprocal supports for each other.

Two proofs are necessary to complete this argument: first, that the Declaration requires limited, constitutional union and, second, that the Constitution requires the principle of equality founded in laws of nature and creation.

The First Proof: Limited Constitutional Union Is Required

We may restate the first inquiry in the following form: is it true that the rebellion against British monarchy would have been unjustified on any grounds other than the grounds of natural rights, and that natural rights must disclose not only people’s claims to justice but their capacities to realize those claims?

When stated thus, the first proof becomes, I believe, easily realizable. Let’s start with the negative argument. The British constitution and laws in no way recognized a right of revolution. Accordingly, the act of revolution could not have been founded on any positive authority. Moreover, the Americans were not disproportionately harmed, relative to other subjects of the monarchy. Therefore, as far as the conceded rights of Englishmen went, the Americans could have had no beef against the Crown. Although non tallagio non concedendo (“no taxation without consent”) was an established principle of positive right in Britain, it was honored more in the breach than in the practice (given the pervasiveness of rotten borough representation). Americans were no less well represented than many a Briton. Nor could America make any secession claim, since the colonies could not affect an autonomous status conditioning their place in the empire. To have a right to secede, they would have had to begin with voluntary assimilation into the empire. Political forms, which are themselves artifices, cannot derive principles of their conduct from nature as opposed to their architecture.

If the Americans were justified at all, in other words, their justification had to be extra-judicial, extra-political, extra-historical. When we read the Declaration of Independence, we notice not only the broad language of the exordium (“When in the Course of Human Events…”) and the universal principle of the enunciation (“We hold these truths to be self-evident…”), but we can especially notice the particular charges (“the long train of abuses and usurpations”) leveled against the King. It has been frequently noted that the very form of the Declaration’s indictment identifies the King rather than the Parliament as the enemy to America’s liberty. Sometimes this is thought to be a ruse to avoid acknowledging Parliament’s authority (the Americans claimed an interpretation of the British constitution that made them directly subject to the monarch without intervention of the Parliament). A careful reading, however, discloses a substantive and not merely rhetorical argument that highlights the Declaration as an initial charter of government.

Government for the Good of the People…

The first twelve charges against the King (all of them, that is, until the thirteenth, which associates him with the Parliament in opposition to the colonies) actually condemn the King foremost for ignoring the welfare of his subjects. The language of the very first charge is meant to characterize the particulars in all of those that follow:

He has refused his Assent to Laws, the most wholesome and necessary for the public good.

Now, the laws invoked by the colonists here are the laws of their colonial legislatures, not any laws of Parliament. Thus, the substance of the charge is that the King, their sovereign, has declined to cooperate in their exertions of lawful and subordinate self- government with an eye to the public welfare. The implicit argument made here, clearly, is that persons are subject to government only for their good, and that argument is a principle that transcends any charter or act of government. It establishes a standard of judgment to which every government of whatever cast is subject, and in the name of which any people, any time, have the right, nay, the “duty, to throw off such Government, and to provide new Guards for their future security.”

…Or Else Legislative Powers Return to the People

Each of the remaining charges against the King reinforces this same principle; each is a particular proof of the universal truth contained in the Declaration’s enunciation. Perhaps none does so, however, so centrally as that in which they accuse him of neglecting the necessary exercise of legislative powers in such a manner as to cause that “the Legislative powers, incapable of Annihilation, have returned to the People at large for their exercise.” But this very observation is followed with the particular notice that the result is to expose the people, inadequately provided, “to all the dangers of invasion from without, and convulsions within.” This observation, then, makes the necessary argument that although in general the purpose of government is to provide for the public welfare, in particular it is to accomplish such acts as the people, otherwise unprovided, cannot so well provide for themselves. And where the constituted government — limited by this purpose — fails, it falls to the people speedily to provide such a government as can respect these limits and accomplish these results.

Each of the charges against the King can be converted into a positive affirmation of the obligations of government. For example, government must respond to “immediate and pressing” needs, relying upon local necessities and judgments wherever delays in execution would be a necessary part of reserving judgment to the highest authority. The needs of people must be accommodated without the cost of them relinquishing “the right of Representation in the Legislature.” Legislatures must operate in such a manner as to remain readily accessible to the people and with recourse to public records. Dissent must be respected within the assemblies that conduct the public business. Free movement of persons into and out of the country is a fundamental part of the liberty of citizens. Judicial powers must be independent of executive will and be empowered to render justice to persons. Citizens should not be burdened with excessive requirements to support public officers. A military administration is incompatible with public liberty, and the military must be subordinate to and dependent upon the civil power.

Architecture of Government Founded in Universal Principles

The architecture of government sought in these affirmations is founded in universal principles and not the English constitution. If there were any doubt about this, the doubt would be resolved not merely by comparing this to the actual English constitution of the day, but also by considering the weighty charge against the King concerning his activities in Canada. For there, the revolutionaries held, he abolished “the free System of English Laws in a neighbouring Province, establishing there in an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies.” Note that this produces a different picture of English laws operating in Canada. If Canada, previously French, were being anglicized along lines different from what obtained in the thirteen colonies, the thirteen colonies were not anglicized. Moreover, the demand for a clear-cut demarcation among the powers of government — executive, legislative, and judicial — derived not from English practice but from a universal principle.

This design of limited constitutionalism, further, was nothing less than imitating in human artifice the order of nature reflected in the powers of God affirmed in the Declaration. God held the three powers of effective order, legislative, executive and judicial. He legislated “the Laws of Nature and of Nature’s God;” regarding humans he was the executor, for “they are endowed by their Creator with certain unalienable Rights;” and he was appealed to as “the Supreme Judge of the world for the rectitude of our intentions.” God, in other words, united the three powers of effective order in his own person. He could do so precisely because he exists in an order above man and respecting which no “consent” to his rule could be demanded. No man is God’s equal, while every man is any king’s moral equal.

Therefore, no rule by men could assemble the three powers of effective order in the same man or body of men, without creating the presence of a power superior to man. The necessity of consent derives from the truth that “all men are created equal,” meaning that no one man is by nature the ruler of any other. In that circumstance, just rule among men can eventuate only from consent. To be effective, however, such consent must be limited by prudential separations of power that will prevent god-like domination. Men will fail to obtain such good as God has ordained for them unless they gather together in effective political union, but effective political union requires limited, constitutional government.

The Declaration needs limited, constitutional union in order to realize its promise of goods ordained by God for men. The Constitution responds to that need. The most evident forms of Constitutional response are visible in the architecture itself. The powers of government are divided into legislative, executive, and judicial branches. Among these, the legislative takes pride of place, being elaborated in Article I and bearing the most careful delineation of powers and principles of representation. This satisfies the concerns of the Declaration, in which the particular enumeration of tyrannical oppressions lists fourteen specific legislative power violations, ten executive power violations, and one judicial power violation. The list of legislative powers in Article I, Section 8 serves as a template by which we may assess the charges against the King as mainly of one or the other tendency. The Constitution established bulwarks where the experience recorded in the Declaration identified dangers. This same pattern is evinced in the Bill of Rights, which opens with the powerful stricture, “Congress shall make no law…”

The Second Proof: The Principle of Equality

The most telling evidence of the Constitution’s principles is provided in its architecture. Nevertheless, further, significant dimensions are contained in the language and tenor of the document. The Preamble has oft been noted as keynoting the document in its identification of “We the People” as the authorizing power of the government established under the Constitution. This responds, of course, to the Declaration’s insistence that the public good is the aim of limited, constitutional union. Moreover, it furthers the claim that not artificial, political entities create the United States of America, but the people, exercising a native, God-given right do so. Not less important, however, is the fact that the authorizing people are recognized within the document as fully entitled to serve in the government and to benefit from its ministrations. Those who are eligible to hold office on the Constitution’s own terms are distinguished no further than by reasonable age and citizenship restrictions. No religious test is admitted. No race or gender is excluded. In short, in the vision of the Constitution, “all men are created equal.”

Perhaps the most important affirmation of the Declaration’s constitutionalism is the careful provision for re-balancing, re-forming, and re-directing the government that is contained within the Constitution. The amending provision is evidently the leading, though not the sole, source of this understanding. The constitution is careful to keep the door open to the formation of new political subdivisions within the Union, at the same time as providing guarantees against arbitrary or unwanted re-constitutions of the political subdivisions. In the vision of the Constitution the states are both permanent members of the Union and autonomous members of the Union. The sovereign without their consent may not alter them. Further, political decision making is constrained by a careful regard to establish broad consensus rather than the mere weight of numbers – or, in other words, as nearly as possible all the people must be comprehended in decisions for all and not merely a disproportionate number. Whether the concern is constitutional amendments (which must attract three-fourths of the states), the election of the president (which must attract dispersed majorities throughout the country rather than a merely numerical majority), or the election of representatives (which must work toward broad acceptance rather than merely ideological conformity), the Constitution is a Declaration-minded charter, eager to avoid ever again exposing one part of the empire to the willful neglect or oppression of another part.

The detailed ways in which the Constitution, rhapsode-like, echoes the Declaration are legion and, mercifully, will scarcely reward rehearsal in these premises. (However, an appendix is added to illustrate the relationship.) A notable example is the subordination of the military power to the civil power, and there are many others. Yet, I would insist that nothing so fully explains the Constitution as the Declaration.

What About Slavery?

Now it will be reasonable for anyone to insist that the compromises of the Constitution be brought within the compass of these reflections – most notably, the compromises with slavery. Is not slavery the very denial of the Declaration that the Constitution is otherwise said to have echoed? No, we cannot duck this important challenge, for it is certainly correct to say that, if the Constitution were a slave-holding Constitution, then it could not have been a Declaration Constitution. Benjamin Banneker argued as much when he appealed, in 1792, to the author of the Declaration to take up the work of vindicating that document by using his office (as Secretary of State) and reputation (as author of liberty’s charter) to end the abuse that slavery was. Banneker believed that only by eliminating slavery could the Constitution be a true Declaration charter.

I would readily embrace Banneker’s impassioned plea on behalf of the slaves, if I were not already persuaded that the reciprocal influences of the Declaration and the Constitution alone provided in this world any hope for the eventual renunciation of slavery as a lawful practice among men. Although Christianity long before the founding of the United States inseminated moral consciousness with repugnance for slavery, it is doubtless correct to observe that it was only when Christianity combined with the political architecture of liberty that any real opportunity arose to sustain that moral consciousness through the abolition of slavery.

The Constitution, then, compromised with slavery. But in what did the compromise consist? Could it be fairly said that the Constitution purchased its ratification at the cost of approving slavery? Or, was it rather that slave-holding purchased an extended lease at the cost of approving a Declaration charter? I believe the answer to this question is that the latter is nearer the truth than the former. We have not only the testimony of James Madison in the first Congress, who interpreted the slavery clauses in the Constitution as revealing an opposition to slavery albeit in consciousness of the inability to eliminate it at once. We also have the very language of the Constitution itself. The studious avoidance of the word, “slave” – thus to avoid staining the Declaration charter – testifies volubly. Moreover, the tendency of each of the slave-provisions is to provide direct testimony against slavery. At least some proportion of the slaves should be regarded as human beings, for purposes of representation and direct taxation (based on population numbers). That language, the three-fifths clause, was borrowed from a 1783 measure that dealt only with taxation (and therefore led slave-holders to resist the formula rather than support it) and also made plain that all free persons included black persons not slaves. This meant that it was not a comment on the human value of black persons; it was rather a practical measure of the degree of influence the respective sides of the controversy exercised in making the decision. The slave-trading language (“the migration or importation of such persons”) again affirmed the personhood of the slaves. And it did more; it identified the trade as a thing eventually to be ended rather than an option for the future. And the last compromise, the fugitive slave clause, conceded that general laws regarding property should be enforced without exception (thus preserving comity among the states) while yet speaking of “persons held to service,” which included a class larger than slaves.

The slave compromises passed the Constitution, to be sure. But the slave power took the greater risk in doing so. For the other provisions of the Constitution constantly fostering and even encouraging a spreading democratic sentiment could fairly have been expected to deepen the modulated criticism of slavery contained with the compromise language itself. The fact that changing economic and demographic facts in subsequent decades rendered this a more problematic expectation cannot be employed to discount the initial prospects. Nor can it be fairly denied that Lincoln’s valiant and successful effort to recapture the original perspective owed everything to the prior existence of the Declaration charter. When Lincoln and Douglas debated whether the Constitution could apply to black people, and Lincoln reverted to the “standard maxim of a free society” (“that all men are created equal”) to explain the nature of the constitutional principles, we beheld in purest form the sustained, reciprocal interplay of the Declaration and the Constitution. Such a view should persuade us that they are friends never to be separated, best friends in the cause of liberty.

Author’s Note: Keynote address delivered before the New Hampshire Center for Constitutional Studies at its 2004 Constitution Day Celebration, Concord, New Hampshire, September 21, 2004. I acknowledge with gratitude the editorial assistance of my wife, Carol M. Allen. Published in Original Intent vol. 5, no. 1 (December 2004): 1-3, 5.

William B. Allen is Emeritus Dean and Professor of Political Science at Michigan State University.

 

Podcast by Maureen Quinn.

 

 

Appendix

Declaration                                                         Constitution

He has refused his Assent to Laws, the most wholesome and necessary for the public good. Article. I., Section. 1.
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.
He has forbidden his Governors to pass Laws of immediate and pressing im- portance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them. Every Bill which shall have passed the House of Representatives and the Senate, shall, before it become a Law, be presented to the President of the United States: If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. … If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it,unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only. Section. 2.
The House of Representatives shall be composed of Members chosen every second Year by the People of the several States, and the Electors in each State shall have the Qualifications requisite for Electors of the most numerous Branch of the State Legislature.
He has called together legislative bodies at places unusual, uncomfortable, and distant from the depository of their public Records, for the sole purpose of fatiguing them into compliance with his measures. The Congress shall assemble at least once in every Year, and such Meeting shall be on the first Monday in December, unless they shall by Law appoint a different Day.
He has dissolved Representative Houses repeatedly, for opposing with manly firmness his invasions on the rights of the people. Neither House, during the Session of Congress, shall, without the Consent of the other, adjourn for more than three days, nor to any other Place than that in which the two Houses shall be sitting.
[The President] may, on extraordinary Occasions, convene both Houses, or either of them, and in Case of Disagreement between them, with Respect to the Time of Adjournment, he may adjourn them to such Time as he shall think proper;

 

 

He has refused for a long time, after such dissolutions, to cause others to be elected; whereby the Legislative powers, incapable of Annihilation, have re- turned to the People at large for their exercise; the State remaining in the meantime exposed to all the dangers of invasion from without, and convulsions within. The Times, Places and Manner of holding Elections for Senators and Representatives, shall be prescribed in each State by the Legislature thereof; but the Congress may at any time by Law make or alter such Regulations, except as to the Places of chusing Senators.
He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
He has obstructed the Administration of Justice, by refusing his Assent to Laws for establishing Judiciary powers. Article III., Section. 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.
He has made Judges dependent on his Will alone, for the tenure of their offices, and the amount and payment of their salaries. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.
He has erected a multitude of New Offices, and sent hither swarms of Officers to harass our people, and eat out their substance. [The President] 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: but the Congress may by Law 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.
He has kept among us, in times of peace, Standing Armies without the Consent of our legislatures. The Congress shall have Power… To declare War… To provide and maintain a Navy; To make Rules for the Government and Regulation of the land and naval Forces; To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the states respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

 

 

He has affected to render the Military independent of and superior to the Civil power. Section. 2.
The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service…
He has combined with others to subject us to a jurisdiction foreign to our constitution, and unacknowledged by our laws; giving his Assent to their Acts of pretended Legislation: Article. VI.
… This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land
For Quartering large bodies of armed troops among us:
For protecting them, by a mock Trial, from punishment for any Murders which they should commit on the Inhabitants of these States:
For cutting off our Trade with all parts of the world:
For imposing Taxes on us without our Consent:
For depriving us in many cases, of the benefits of Trial by Jury:
For transporting us beyond Seas to be tried for pretended offences
For abolishing the free System of English Laws in a neighbouring Province, establishing therein an Arbitrary government, and enlarging its Boundaries so as to render it at once an example and fit instrument for introducing the same absolute rule into these Colonies: … no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States. [counters the Quebec Act]
For taking away our Charters, abolishing our most valuable Laws, and altering fundamentally the Forms of our Governments: Section. 4.
The United States shall guarantee to every State in this Union a Republican Form of Government, and shall protect each of them against Invasion; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic Violence.
For suspending our own Legislatures, and declaring themselves invested with power to legislate for us in all cases whatsoever.
He has abdicated Government here, by declaring us out of his Protection and waging War against us. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defense, 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.
He has plundered our seas, ravaged our Coasts, burnt our towns, and destroyed the lives of our people.
He is at this time transporting large Armies of foreign Mercenaries to compleat the works of death, desolation and tyranny, already begun with circumstances

 

 

of Cruelty & perfidy scarcely paralleled in the most barbarous ages, and totally unworthy the Head of a civilized nation.
He has constrained our fellow Citizens taken Captive on the high Seas to bear Arms against their Country, to become the executioners of their friends and Brethren, or to fall themselves by their Hands.
He has excited domestic insurrections amongst us, and has endeavoured to bring on the inhabitants of our frontiers, the merciless Indian Savages, whose known rule of warfare, is an undistinguished destruction of all ages, sexes and conditions.

 

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Essay 89 – Guest Essayist: Michael P. Farris

“We, therefore, the Representatives of the united States of America, in General Congress, Assembled, appealing 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; that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved; and that as Free and Independent States, they 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. And for the support of this Declaration, with a firm reliance on the protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes and our sacred Honor.”

The Declaration of Independence has only one operative paragraph—the last one. All that precedes it is an explanation of the actions taken in that bold final paragraph.

Yet, even in the midst of declaring the United States to be a new, independent nation as a matter of right, in this concluding paragraph there are two important references to God.

The first is an appeal “to the Supreme Judge of the World for the Rectitude of our Intentions.”

This is a remarkable thing for a bunch of “rebels” to proclaim. It is common for a rebel to begin with the rejection of human authority and quickly follow with the rejection of divine authority. This was not the attitude of America’s founders. They believed in the higher law that comes from God, and by this appeal they acknowledge their duty of obedience to God both in word, action, and even in their intentions.

In the midst of declaring their independence from England, they declared their dependence on God.

The reason for this attitude of faith flowed directly from their view of both society and government.

In his Notes on the State of Virginia, Thomas Jefferson made the case that freedom was dependent on the right view of God and man:

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 of the gift of 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: that his justice cannot sleep for ever.

In a similar vein, George Washington reminded the nation of these truths in his Farewell Address:

Of all the dispositions and habits which lead to political prosperity, religion and morality are indispensable supports. In vain would that man claim the tribute of patriotism, who should labor to subvert these great pillars of human happiness, these firmest props of the duties of men and citizens.

In light of the common canard that most of the Founders were deists, it is important to note that this phraseology is utterly inconsistent with deism—a philosophy which contends that God created the world and then walked away and is unconcerned with present human actions.

God is described as the “Supreme Judge of the World.” This acknowledges that God has universal standards and that He will hold all men accountable for their actions. This is not a disconnected, indifferent God.

Indeed, Jefferson’s great-grandson acknowledged his forebear’s unorthodox views on most matters but noted “but he was a firm believer in Divine Providence, in the efficacy of prayer, [and] in a future state of rewards and punishment.”

The founding generation widely believed that there were eternal consequences for improper actions during life. Thus, the signers of the Declaration were not merely willingly accepting the temporal consequences of their bold action, but they were effectively saying that they were willing to stand before the throne of God and accept His judgment of these actions.

They believed they were doing right in the eyes of a holy God.

The second reference to God in this paragraph comes in the last sentence:

And for the support of this Declaration, with a firm Reliance on the Protection of divine Providence, we mutually pledge to each other our Lives, our Fortunes, and our sacred Honor.

This again echoes the theme of dependence on God. In the first instance they proclaimed that their hearts were right before God; this proclaims that the success of their efforts depended entirely on God’s intervening protection.

This was not a mere figure of speech or a rhetorical gesture. They actually believed that God would intervene on their behalf in these dangerous efforts.

George Washington’s letter to Landon Carter on March 27, 1776, describing his capture of Boston clearly demonstrates his belief in God’s intervention:

Upon their discovery of the works next morning, great preparations were made for attacking them; but not being ready before afternoon, and the weather getting very tempestuous, much blood was saved, and a very important blow, to one side or the other, was prevented. That this most remarkable interposition of Providence is for some a wise purpose, I have not a doubt.

Less than a month after the Declaration was signed, Samuel Adams said:

There are instances of, I would say, an almost astonishing providence in our favor; our success has staggered our enemies, and almost given faith to infidels; so we may truly say it is not our own arm which has saved us.

These two passages reflect both parts of the promise that we see in John 15:5:

I am the vine, you are the branches. He who abides in Me, and I in him, bears much fruit; for without Me you can do nothing.

Their appeal to the rectitude of their intentions reflects those willing to abide in Christ. And their acknowledgement of their dependence on God for their success shows that they knew that without Christ, they could do nothing.

These are humble men who lived by profound truths.

Michael P. Farris is president and CEO of Alliance Defending Freedom. As the second CEO of ADF, he brings to the role a diverse background as an effective litigator, educator, public advocate, and communicator, and is widely recognized for his successful work on both the national and international stage.

Farris was founding president of both the Home School Legal Defense Association (1983) and Patrick Henry College (2000) and continues to serve as chairman of the board of HSLDA and chancellor emeritus of PHC.

He graduated from Western Washington State College magna cum laude with a bachelor’s degree in political science, followed by a Juris Doctor from Gonzaga University (with honors). He also earned an LL.M. in public international law (with honors) from the University of London.

Farris has specialized in constitutional appellate litigation. In that capacity, he has argued before the appellate courts of 13 states, eight federal circuit courts of appeal, and the U.S. Supreme Court, where in 2018 he successfully argued NIFLA v. Becerra, resulting in a free speech victory for California’s pro-life pregnancy centers.

Farris has testified many times before both the House and Senate. He was an executive committee member of the Coalition for the Free Exercise of Religion that successfully lobbied Congress for the passage of the Religious Freedom Restoration Act of 1993. He also has substantial experience in international religious freedom advocacy.

Farris is the author of over 15 books, as well as law review and other scholarly and popular articles. He and his wife, Vickie, have 10 children and many grandchildren.

Podcast by Maureen Quinn.

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Essay 88 – Guest Essayist: Tony Williams

Most Americans today see the Declaration of Independence as the handiwork of one man—Thomas Jefferson—that was almost handed down to the Second Continental Congress from on high and adopted for American independence. The truth is much more complex, and ultimately more interesting. The Declaration of Independence was part of a great republican deliberative moment of the people and their representatives in colonial legislatures and the Continental Congress engaging in reflection and debate about their liberties and fate as a people united with a common purpose.

The deliberation about independence took shape over a decade of resistance against British taxes and tyranny. While some colonists spoke of a possible break with Great Britain, most considered themselves English and could not imagine living outside the empire. However, the war forced them to reconsider their ties with the British and provided a moral imperative to protect natural rights against a tyrannical government.

The publication of Thomas Paine’s pamphlet, Common Sense, in January 1776, made independence central to the national conversation. As colonists substituted committees of safety and conventions of representatives of the people for royal rule in several colonies, Congress began to consider independence.

On May 10, Congress adopted a resolution urging each colony to adopt new state governments and write constitutions. Five days later, Congress added a preamble written by John Adams that asserted, “it is necessary that the exercise of every kind of authority under the said crown should be totally suppressed, and all the powers of government exerted, under the authority of the people of the colonies.”

On June 7, Richard Henry Lee rose in Congress and offered a resolution for independence. “That these United Colonies are, and of right ought to be, free and independent States.” Congress appointed a committee to draft a Declaration of Independence while states such as Virginia wrote constitutions and their own declarations of rights.

Jefferson composed the draft of the Declaration and submitted it to his fellow committee members, particularly Benjamin Franklin and Adams, for their review. After making light edits, the committee sent the document to the Congress for its consideration.

The delegates to the Congress were ready to enter the seminal discussion over national independence. Many important founders were not present for these debates, the creation of the Declaration of Independence, or the final vote on Lee’s resolution. For example, George Washington, Alexander Hamilton, and Henry Knox were then preparing the defenses of New York for a massive British invasion.

Others were either opposed to independence or at least hesitant. The middle colonies—New York, New Jersey, Pennsylvania, Delaware, and Maryland—were the center of most of the opposition to independence. Some of the leading statesmen against independence were John Dickinson (PA), James Wilson (PA), Edward Rutledge (SC), and financier Robert Morris (PA). Their viewpoint was predicated on several factors: they thought it imprudent to sever historic ties to Britain, the colonies were insufficiently united, the Continental Army needed decisive victories, and the timing was not just right yet. Moreover, congressional delegations waited for their legislatures to authorize them to vote for independence.

While Thomas Jefferson was drafting the Declaration of Independence, several key colonies authorized their delegates to support independence. In this decisive shift, New Jersey, Pennsylvania, and Delaware delegations were permitted to vote for independence. Maryland and New York still had not changed their mind in time for the final debates over independence.

With more delegations receiving authorization to vote for independence and the tide clearly turning in favor of independence, Rutledge begged his friend, John Jay of New York, who opposed independence, to make haste to Philadelphia for support. But Jay had important business that kept him from the city as it did other delegates through the spring and summer.

On July 1, John Dickinson and Adams engaged in a titanic debate over whether America should declare its independence while a dramatic thunderstorm raged outside. The next day, Congress voted for independence by passing Lee’s resolution. Caesar Rodney of Delaware famously rode through the night to join his delegation to push it in favor of independence. John Rutledge and his fellow South Carolinians decided to switch their vote for the resolution for the good of America.

Dickinson and Morris abstained from the final vote as did the entire New York delegation. The vote was thus unanimous in favor of independence. It was a hard-fought battle over a decisive break with Great Britain between principled men who voted, and had deliberated according to their consciences. They disagreed with one another—sometime vehemently—and then accepted the result.

The Congress then considered and edited the document much to Jefferson’s chagrin.  It adopted the Declaration of Independence on July 4 and enunciated the natural rights principles of the American republic. Congressional president John Hancock and secretary Charles Thomson affixed their signatures to the document that day. New York belatedly voted for independence more than a week later.

Most of the delegates did not sign the document that day, however. Most of them signed the document on August 2. Morris added his signature despite his earlier opposition, though Dickinson never did. Matthew Thornton of New Hampshire was elected to Congress in the fall and retroactively signed the document in early November. Other statesmen who did not sign the document included Robert Livingston, who was recalled to New York, and George Clinton resigned his seat and returned to New York state politics before they could sign.

The debate over independence, the ratification of the Constitution, and the Bill of Rights demonstrated that history is ruled by continency. The fate of America could have turned out very differently had individuals not made certain decisions, or debates took a different turn. Perhaps most importantly, the vigorous debate over independence was proof of the strength of republican principles of self-government during the American founding. The people and their representatives, not a king, would determine their own destiny.

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

Podcast by Maureen Quinn. 

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Essay 87 – Guest Essayist: James C. Clinger

George Walton was one of the most fascinating, but puzzling signers of the Declaration of Independence. His life and career included great triumphs and defeats, as well as a number of changes in political course that were thought by some to be rank opportunism. Others believed those choices were principled. He rose to great heights of political and governmental office, but also endured censure and disappointment, losing offices and missing opportunities for greater esteem. He died in relatively modest circumstance after serving as a senator, governor, judge, and militia officer in service to Georgia and his country.

George Walton was born in Virginia sometime between 1740 and 1750.  The exact date is not known.[1] Walton’s father had died before his birth, and his mother died a few years later, so Walton was taken in by his father’s brother, who was also named George Walton. The elder Walton was not a poor man, but he had thirteen children of his own to raise, as well as those of his brother. When he was fifteen, the younger Walton was apprenticed as a carpenter, where he learned that trade. He was released from his apprenticeship while still a teenager, when he moved with an older brother to Savannah, Georgia. There, he became a clerk in an attorney’s office, and began to learn the law while on the job. By 1775, Walton had not only become a practicing attorney, but had also become one of the most sought-out and prosperous lawyers in Savannah.  As his professional success grew, Walton became involved with the young Whigs opposing British rule in America.[2]

There were multiple factions jockeying for influence in Georgia’s colonial politics at the time. Some Loyalists wished to remain a British colony. The Whigs wished to separate, but they were internally divided between more radical and more conservative factions, which were concentrated in different parishes. Walton had relatives who had settled in western Georgia, but he was also connected to more conservative politicians along the Atlantic coast. Walton was elected to the provincial congress in July of 1775 and chosen for the Council of Safety in December. He also became a high-ranking officer in the Georgia militia, where he became a close follower of Colonel Lachlan McIntosh.    Walton was chosen as one of five delegates to the second Continental Congress, but he was one of only three to attend the proceedings and vote on independence. Walton was the last of the three to arrive in Philadelphia, so he missed some of the debate over the motion to break free from Britain. He did arrive in time to hear John Adams’ summation of the arguments for independence. Years later, Walton wrote to Adams telling him that “Since the first day of July, 1776, my conduct, in every station in life, has corresponded with the result of that great question which you so ably and faithfully developed on that day.”[3] Walton remained an enthusiastic Adams supporter for the rest of his life.

Walton served four one-year terms in the Continental Congress, although the terms were not consecutive. Walton spent much of his time in Congress convincing other representatives of the importance of Georgia in the war effort asking for assistance. In late 1777, Walton returned to Savannah and his law practice. Walton married Dorothy Camber, who was said to be in her teens at the time. They had two sons together. Walton soon returned to public office by serving in the General Assembly. He also volunteered in November, 1778, to serve in the militia to repel a British invasion from Florida. In December, the British landed on the Georgia coast to attack Savannah. Walton ordered his militia unit to stop British troops advancing through a swamp. His troops were unable to hold their position and quickly retreated. Walton was left in the field, badly wounded by a bullet wound in his thigh and a fall from his horse. He spent the next ten months as a prisoner of war.[4]

After his release, Walton began a political transformation that perplexed many historians and at times infuriated some of his contemporaries.   Over the next few years, Walton was named to a number of public offices: governor, member of the U.S. House of Representatives, state supreme court chief justice, and United States Senator. Before and during the revolutionary war, Walton had been a political ally of Lachlan McIntosh and a virulent critic of Button Gwinnett, who had joined Walton and Lyman Hall in Philadelphia as Georgia’s representatives to the Second Continental Congress. Walton was even censured for his support of a duel in which McIntosh killed Gwinnett. But after his release by the British in a prisoner exchange, Walton began to re-align himself politically with the factions that he had previously opposed. He turned away from McIntosh and fell in with the more radical faction that Gwinnett had led before his death.[5] Walton allegedly forged a letter ostensibly penned by the speaker of the Georgia house of representatives which urged the removal of McIntosh as commander of Georgia’s military forces. After the speaker reported that he had not signed the damaging letter, Congress repudiated its dismissal and restored McIntosh to his position. Later, the son of Lachlan McIntosh, Captain William McIntosh, reportedly horsewhipped Walton, a crime that led to his court-martial.[6]

Whether this was a strategic, politically opportunistic decision or a principled change of heart is not clear, but there is no doubt that many of Walton’s contemporaries believed that he had betrayed his former allies.   Nonetheless, despite accusations of dishonesty and betrayal, Walton continued to be elected or nominated for public offices. Finally, after serving part of a U.S. Senate term to fill a vacancy, Walton failed to be re-elected in 1795.[7]

Earlier, in 1787, Walton was asked to attend the federal constitutional convention as a delegate from Georgia, but he declined so he could attend to matters of state. In 1789, Walton was named as a delegate to the convention to craft Georgia’s second state constitution.[8] That convention produced a document quite similar in form to the new federal constitution, with a separation of powers and a bicameral legislature.[9]   After the constitutional convention, Walton was elected a second time as governor. During his time in office, the state capital was moved to Augusta, where Walton and many of his relatives had settled. Walton spent much of his time in negotiation with Indian tribes, seeking the ceding of lands to the state. Soon Walton was embroiled in two land sale scandals, one involving the “pine barren speculation” of south-central Georgia, the other, larger scandal involving the Yazoo land sales of territory making up present-day Alabama and Mississippi. Walton approved the Yazoo land sales that had begun under Governor George Mathews and which involved bribery within the state legislature. When the scandal came to light, the Georgia General Assembly enacted a law canceling and revoking the land sales that had already been completed.   This led to a landmark U.S. Supreme Court decision, Fletcher v. Peck, in which the court ruled, for the first time, that a state law violated the federal constitution. Specifically, the court ruled that the Georgia law violated the prohibition of the impairment of the obligation of contracts in Article 1, Section 9, Clause 1.[10]

Unlike most men of property and influence in Georgia, Walton did not own slaves. There is little record of his public views on slavery, but it is known that shortly after leaving the governor’s mansion, Walton spoke out against what he called “barbarian” treatment of members of an African-American Baptist congregation in Yamacraw, Georgia, in 1790.   When the congregation first began to hold services, local whites imprisoned some of the church-goers and whipped about fifty members of the assembly. After Walton spoke out against this outrage, a state court ordered the release of the prisoners and declared that religious services could continue.[11]

In his last years, Walton lived somewhat quietly in a cottage outside of Augusta that was located on confiscated Tory land. He never completely left public life, serving as a superior court judge and speaking out on matters of public concern that received his attention. He became an enthusiastic booster supporting the economic development of Augusta.   He was a founder of Richmond Academy and tried unsuccessfully to have Franklin College, the predecessor of the University of Georgia, located in Augusta. His last years were difficult. He had never completely recovered from his wounds incurred in the revolution and he suffered many illnesses in his final years.[12] He was not well off financially. Walton died in February of 1804, only two months after the death of his oldest son.[13]

George Walton’s reputation was marred by scandal that might have broken many politicians. But Walton continually returned to power after losing office and influence. His resolve to return again and again to the political fray displayed his commitment to the building of a new nation. One of the youngest signers of the Declaration of Independence, George Walton was certainly a skilled statesman who sacrificed much in service to his country and his state of Georgia.

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

Podcast by Maureen Quinn.

 

[1] https://www.dsdi1776.com/george-walton/

[2] Bridges, Edwin C.  “George Walton,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[3] Bridges, op cit., page 64.

[4] Bridges, op cit.

[5] Bridges, op cit.

[6] Daughters of the Signers of the Declaration of Independence.  https://www.dsdi1776.com/george-walton/

[7] Daughters of the Signers of the Declaration of Independence. ibid .

[8] Bridges, op cit.

[9] Hill, Melvin B., Jr., and Hill, Laverne Williamson Hill.   “Georgia: Tectonic Plates Shifting.” In George E. Connor and Christopher W. Hammons (editors).  The Constitutionalism of American States. Columbia, MO: University of Missouri Press, 2008.

[10] 10 U.S. 87 (1810).

[11] Whitescarver, Keith. 1993. “Creating Citizens for the Republic: Education in Georgia, 1776-1810.” Journal of the Early Republic 13 (4): 468.

[12] Daughters of the Signers of the Declaration of Independence.  https://www.dsdi1776.com/george-walton/

[13] Bridges, op cit.

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Essay 86 – Guest Essayist: James C. Clinger

Lyman Hall was a multi-talented clergyman, physician, and statesman who served in the Second Continental Congress, signed the Declaration of Independence, and won state office in his adopted state of Georgia.   Repeatedly, Hall faced personal and financial losses as a result of his service to his country and his state, but he emerged as a respected political figure in a politically fractious environment.

Most sources indicate that Hall was born in Connecticut in 1724, although some authorities list a later year of birth. Hall’s family was filled with pious Congregationalists, and his father and uncle served as clergy. To no one’s surprise, Hall studied divinity at nearby Yale University, and then began a career as a parson. He lost his position because of some sort of scandal involving confessed immoral conduct.   The exact nature of the offense is not now known. Whatever the details of the controversy were, Hall’s reputation was not so severely damaged that he was unable to secure some income preaching occasionally at local churches. For a time, he also taught school. Perhaps those careers did not offer much attraction to Hall, since he resolved to learn to practice medicine through an internship with an established physician.[1]   This kind of medical education was not uncommon at that time, even though it would be unthinkable in the United States today.

Hall married Abigail Burr in 1752, but she died a year later. Hall later married Mary Osborne, who bore him a son. Hall and his family moved from Connecticut to Dorchester, South Carolina, in 1756, where he practiced medicine. He later moved to Liberty County, Georgia, where he again set up a medical practice and later acquired a plantation. In both South Carolina and Georgia, Hall settled amongst transplanted New Englanders, descendants of Puritans. Once in Georgia, Hall became active in the push for independence.[2]

In 1775, Hall was elected as a delegate to the First Continental Congress from St. Johns Parish. The colony of Georgia at that time was divided amongst factions that were urging independence and those that wished to become reconciled with the British government. Because he was not chosen state-wide, Hall attended the First Continental Congress as a non-voting member. Hall brought a shipment of rice to Philadelphia to be distributed in Boston which was suffering from the British embargo on foodstuffs from other colonies. Hall served on a scientific committee along with John Adams, Benjamin Franklin, and Patrick Henry.[3]

In 1776, Hall was chosen as one of five delegates to the Second Continental Congress, although only three attended at the time of the debate and to vote on independence. Hall and Button Gwinnet, who were personal friends and members of the same faction in Georgia’s colonial politics, arrived first. George Walton, who represented a different faction and geographic areas of Georgia, arrived only shortly before the vote. Hall served on committees concerned with provision of medical supplies to the continental troops. Hall was regarded as a steady and hardworking committee member.[4] The Georgia delegation was stalwart in its support for the proposal for independence, but according to Thomas Jefferson, the delegations from Georgia and South Carolina led the opposition to his provision “reprobating the enslaving [of] the inhabitants of Africa.”[5]

Hall was steadily re-elected to the Congress through 1780, but he may not have actually served in Philadelphia after February of 1777.   Matters of state and family necessity required him to return to Georgia and later to flee to South Carolina, where he still had friends and supporters. The British issued a bill of attainder directing his arrest and the confiscation of his property. Hall’s plantation house at “Hall’s Knoll” and his home in Sunbury, Georgia, were burned to the ground by British troops.[6] Years later, the United States Constitution would forbid the use of bills of attainder by the federal government (Article I, Section 9, Clause 3) and by the states (Article I, Section 10). In addition to the losses of property, many personal papers and public documents were lost in the flames.

Hall was devastated by the death of Button Gwinnett in a duel in 1777.   Hall made an unsuccessful effort to arrest and prosecute the duelist, Lachlan McIntosh, who killed Gwinnett. Hall briefly returned to his medical practice, but was elected to the Georgia House of Assembly in 1783. One of the first acts of the Assembly was to elect Hall governor.   It was not a position that he had sought. While governor, Hall worked futilely on the state’s finances, which were in a complete shambles. Hall also initiated negotiations with Native American tribes from whom the state wished to gain land concessions.[7] Hall pushed hard for a piety-oriented educational system that would “restrain vice and encourage virtue.” Hall supported the creation of what was originally known as Franklin College, which later became the University of Georgia.[8]

Factional politics in Georgia was fierce, both before and after statehood.   After Hall left office as governor he was taken into custody for contempt because he failed to produce some public documents regarding sequestered estates. He later was cleared of the charge, but the allegations placed great strain on the last years of his life. The estate of a one-time business partner was suing Hall over twenty year old disputes as late as 1786. His loss of property during the revolution and the demands of his public obligations upon his time left him in financial difficulties.[9]

Hall moved to Savannah in 1785, where he once more practiced medicine. He did not leave public service entirely, though, for he supplemented his income as Judge of the Chatham Court. Hall moved to a Burke County plantation shortly before he died in 1790, leaving behind a widow and a son who would both die within three years.[10]

Lyman Hall’s name may be the most well-known of Georgia’s signers of the Declaration of Independence, although much of his fame may be attributed to the stage and movie musical, 1776, in which Hall plays a significant supporting role. Unfortunately, very little about the musical’s portrayal of Hall can be established as factual. Hall’s actual life was certainly dramatic enough to deserve the attention of all Americans, and certainly all Georgians.

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

Podcast by Maureen Quinn.

 

[1] Young, James Harvey.  “Lyman Hall,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[2] Krafka, J.. “Lyman Hall-Yale 1747: A Connecticut Doctor Who Mixed Medicine and Politics in Georgia.” Yale Journal of Biology and Medicine 10 (1938): 531-537.

2 Young, James Harvey.  “Lyman Hall,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[4] Young, op cit.

[5] Jefferson, Thomas. “The Declaration of Independence: Thomas Jefferson’s Account.” https://www.ushistory.org/declaration/account/index.html

[6] Young, op cit.

[7] Krafka, op cit.

[8] Whitescarver, Keith. 1993. “Creating Citizens for the Republic: Education in Georgia, 1776-1810.” Journal of the Early Republic 13 (4): 455-479.

[9] Krafka, op cit.

[10] Krafka, op cit.

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Essay 85 – Guest Essayist: James C. Clinger
Nathaniel Hone the Elder (Irish, 1718–1784)Title: Portrait of Button Gwinnett, signer of the Declaration of Independence from GeorgiaMedium: Oil on Canvas Size: 84.5 x 73.7 cm. (33.3 x 29 in.)

Button Gwinnett was one of the three Georgia delegates to the Second Continental Congress who signed the Declaration of Independence. Gwinnett was also was a prominent leader in Georgia’s state government. But despite those prominent achievements, Gwinnett’s life was also full of controversies, scandals, and tragedies. He was the second of the fifty-six signers to die, and his death was caused by internal political and personal feuding within Georgia, not by the new nation’s battles with the British.

Gwinnett was born in Gloucester, England, in 1735, the son of an Anglican vicar. He was named in honor of his godmother, Barbara Button. He married Anne Bourne, and they had three children together. For much of his adult life, he worked as a merchant, but was never consistently successful. In fact, he may have fled England to come to the colonies in order to escape his creditors. After living briefly in Nova Scotia and Jamaica, Gwinnett arrived in Savannah, Georgia, where his business ventures were mostly unsuccessful.[1] Gwinnett did have some success in politics as he quickly became a leader within a faction that favored wresting political control from elites in Christ Church Parish as well as from the British. Georgia was the last of the original thirteen colonies to be organized by the British. The population was concentrated within a few miles of the Atlantic coast, with only sparse settlement in the backcountry. Much of the representation in the colonial assembly was held by landed gentry from Christ Church Parish, while other parishes had little influence.[2] Gwinnett became an outspoken leader of colonists from St. Johns Parish and claimed to represent the common people throughout all of Georgia.

The British presence was led by royal governors, the last of which was a fairly popular and capable administrator, Sir James Wright. Actions by the British government affected all of the American colonies slowly led to opposition in Georgia.[3] The opponents of British rule were known as Whigs, but the group was divided among different factions. The more conservative faction had its base in Christ Church parish, while a more radical faction, which included Button Gwinnett, had more support elsewhere. The radical faction, later known as the Popular Party, gained political strength in Georgia after the Stamp Act was enacted in Britain and after British troops fought with colonists in Lexington and Concord.[4]

Gwinnett rented a store shortly after arriving in Savannah and established himself as a merchant. That venture proved unsuccessful and Gwinnett borrowed money to buy St. Catherine’s Island in St. John’s Parish so that he could become a planter. At that time, he became active in local politics and civic affairs, becoming a justice of the peace and later a representative to the Commons House of Assembly. During his first term in legislative office, he made a name for himself as an advocate for parishes that had taxes imposed upon them without legislative representation. He also became known as an opponent of the royal governor.[5]

Gwinnet left the Assembly after one session to try to return to his plantation and stave off bankruptcy. Soon both his personal property and his land were put up for forced sale to satisfy his creditors in 1773.   Gwinnett returned to politics, claiming that his troubles and those of other Georgians were the doing of the elites from Christ Church Parish and the royal governor. Georgia did not send a delegation to the First Continental Congress, because of divisions between the different Whig coalitions. The St. Johns Parish representatives also boycotted the First Provincial Congress, but later held a Second Provincial Congress in July of 1775 which was attended by all factions, but not by Gwinnett.   Forging an alliance between his supporters in St. John’s Parish and new recruits from the western, rural areas of Georgia, Gwinnett built up a personal following. When the Continental Congress declared that Georgia should raise a continental battalion, the colonial legislature chose Gwinnett as the commander, despite his complete lack of military qualifications. However, Gwinnett never served as commander because the different factions later chose him as a delegate to the Second Continental Congress, joining his friend and political ally, Lyman Hall.   The man then chosen to serve as the battalion commander was Lachlan McIntosh, an officer in George Washington’s continental army, who at the time, at least, was considered to be unaffiliated with any particular faction.[6]

Gwinnett presented his credentials in Philadelphia on May 20, 1776.    He served on some committees, but little is known about his participation in any debates on independence. Gwinnett did vote for the motion in support of independence, and he did sign the Declaration of Independence on August 2. Gwinnet returned to Georgia, probably hoping to re-gain the appointment to the battalion commander, but McIntosh was selected to remain in that position. Gwinnet was soon chosen to participate in a state constitutional convention that would draft the first of Georgia’s constitution. Once he arrived at the convention, Gwinnett was chosen as speaker. Most records of the debates at the convention have not survived to this day, but it appears that the final product was to Gwinnett’s liking. The new state constitution established relatively low property ownership requirements for voting, created a unicameral state legislature, and established a weak chief executive, elected by the legislature, who could not veto legislative actions. The new constitution also abolished the parish system of representation and created counties that would serve as administrative units of the state as well as a basis for representation in the legislature. The new document was approved in February of 1777. By that time, Gwinnett served on the Council of Safety, which assumed governmental power after the Provincial Congress adjourned. The president of the Council of Safety, Archibald Bulloch was the de facto chief executive. Bulloch died suddenly, late in that month. The Council of Safety selected Gwinnett to serve as temporary president. The only dissenting vote was cast by George McIntosh, the brother of Lachlan McIntosh.[7]

Gwinnett urged the Continental Army to form an expedition to attack British troops and sympathizers in what is now St. Augustine, Florida.   But those urgings were ignored or rejected. Gwinnett also urged the Georgia battalion to take action, but was met with resistance from Lachlan McIntosh, who thought the Georgia forces were ill-prepared to mount an operation in that territory far from their sources of supply.   Eventually, an attempt to begin an expedition did occur, but the effort was abandoned before the troops moved more than a few miles from their base of operations.

Gwinnett’s feud with the McIntosh family intensified after he received a packet of documents in March of 1777 that reported that George McIntosh had entered into a business partnership with his brothers-in-law to ship rice first to Dutch Guiana and then to the British West Indies.   The shipment took place before independence was declared, but it was a violation of the Continental Association’s prohibition of trade with British ports. George McIntosh was arrested, but later released on bail, paid for in part by members of the Council of Safety.[8]

By early May, the first assembly under the new constitution met to elect the first governor. Gwinnett expected to be chosen, but the legislature selected another member of the Popular Party, John Adam Treutlen, as governor. The legislature also reported the results of an investigation into the St. Augustine expedition, which upheld Gwinnett’s position and implicitly rejected the stance taken by Lachlan McIntosh. Enraged, McIntosh took to the floor of the Assembly and declared that Gwinnett was “a Scoundrell & Lying Rascal.” Gwinnett was not willing to allow the insult to go unchallenged. On May 15, 1777, he issued a written challenge to McIntosh to a duel on the following day. McIntosh agreed.   The following morning, standing only about a dozen paces apart, Gwinnett and McIntosh fired at one another. Both men hit their target.   McIntosh suffered a flesh wound to his thigh, but his shot shattered bone just above Gwinnet’s knee. McIntosh asked if both parties could re-load and fire again, but the seconds intervened to put an end to the duel. The antagonists shook hands, and their seconds took the wounded men home. McIntosh made a complete recovery, but Gwinnett’s wounds quickly became gangrenous. He died Monday morning, May 19, leaving behind a destitute widow and three orphaned children. He was the second of the signers of the Declaration of Independence to pass away, and the first to die violently.[9]

Gwinnett was an intriguing, controversial figure. He was in many ways politically adroit, but he was an utter failure in business and even in politics his victories were short-lived. He was loved by some of his followers but was hated by his opponents. Lachlan McIntosh was far from the first to accuse him of dishonesty and betrayal. Nonetheless, he is remembered today for his role in crafting, and signing in support of, one of America’s foundational documents, the Declaration of Independence.

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

Podcast by Maureen Quinn.

 

[1] Davis, Robert Scott.   “The Dark and Heroic Histories of Georgia’s Signers,” Journal of the American Revolution.  February 11, 2019.  https://allthingsliberty.com/2019/02/the-dark-and-heroic-histories-of-georgias-signers/

[2] Jackson, Harvey H.  “Factional Politics in Revolutionary Georgia,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[3] Bridges, Edwin C.  “Prelude to Independence,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[4] Jackson, Harvey H.  “Factional Politics in Revolutionary Georgia,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[5] Jackson, Harvey H.  “Button Gwinnett,” in Georgia’s Signers and the Declaration of Independence, by Edwin C. Bridges, Harvey H. Jackson, Kenneth H. Thomas, Jr. and James Harvey Young. Cherokee Publishing Company, 1981.

[6] Jackson, ibid.

[7] Jackson, ibid. 

[8] Jackson, ibid.

[9] Fleming, Thomas H. (2011). “When Politics Was Not Only Nasty… But Dangerous”. American Heritage. 61 (1). Retrieved 24 May 2021.

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Essay 84 – Guest Essayist: Edward Lee

Born in Charleston, South Carolina, Arthur Middleton (June 26, 1742-January 1, 1787) was the son of Henry Middleton and Mary Williams Middleton. Arthur’s father, Henry, served as president of the First Continental Congress in 1774 after Peyton Randolph. Arthur Middleton was educated in England at Harrow School, Westminster School, and Cambridge, Class of 1773. He studied law, also, at the Middle Temple and traveled extensively in Europe for two years prior to Independence, developing a strong appreciation of the fine arts such as music, architecture, literature, and learning Latin and Greek.

When Arthur was in his early twenties, he returned from attending school to live in his home state of South Carolina. Soon after returning home, Middleton married, and he and his bride, Mary Izard, settled at Middleton Place. They had nine children together.

Once settled back in South Carolina, Arthur became engaged in politics, interested in the activity of independence. His father, Henry Middleton, viewed negatively the colonies’ Loyalists and wanted his son to succeed him as a member of the Continental Congress to oppose the encroaching policies of the British. Due to Arthur being a vocal critic of England and Parliament’s actions, like his father, this led to the thirteen-member Council of Safety. He served on the council as a delegate of the First and Second Provincial Congresses, then succeeded his father as a delegate to the Continental Congress in 1776. Though a man of great wealth and much to lose, with sober knowledge of the risk to his own life and that of his family, Arthur supported the cause of freedom, voting in favor of independence from Great Britain, leading him to add his signature to the Declaration of Independence.

By the end of 1777, Arthur declined both a further role in Congress, and an election as governor of South Carolina in 1778. As part of his service, Arthur and William Henry Drayton worked together on the Great Seal of South Carolina with a design inspired by the Battle of Sullivan’s Island in June of 1776. The design holds the dates March 26 when the state constitution of South Carolina was ratified, and July 4 to mark the Declaration of Independence, and the year 1776 for the momentous events of that same year. Arthur was also instrumental in constructing the state constitution for South Carolina.

Later, as the British laid siege to Charleston in 1780, Middleton was active in the city’s defense as a member of the militia. His home of Middleton Place was attacked as well. His family escaped, but he, like Rutledge and Heyward, was captured and confined aboard ship in St. Augustine, Florida, and exchanged for British prisoners the following year, 1781, in Philadelphia.

Middleton remained in Philadelphia to continue serving in the Second Continental Congress until 1782. This was a time of discussing and crafting a governing document upon which to get their freedom and independence started even though the American Revolutionary War for independence from Britain was raging, and a better document would be needed, later resulting in the United States Constitution by 1787. In March 1781, the assembly of delegates, though now referred to as under the same Continental Congress, was then known as the Confederation Congress, or Congress of the Confederation (convened from 1781-1789), after the Articles of Confederation were approved by the states in March 1781 to decentralize government and protect their new governing system from repeating what the Americans were fighting against in the current American Revolutionary War. Moreover, the Articles of Confederation were written to unite the thirteen colonies, vest most of the power in the states so that governing remained in the hands of the American people, and limit power of the courts. Upon completing his service in Congress there, Arthur returned home to his family at Middleton Place.

Arthur Middleton accomplished much for the cause and defense of American independence, known for his unwavering patriotism and moral character. When he died, the State Gazette of South Carolina praised him as a “tender husband and parent, humane master, steady unshaken patriot, the gentleman, and the scholar.” Middleton Place passed into the care of his eldest son, Henry, who later was elected Governor of South Carolina, United States Representative, and Minister to Russia. Arthur’s other children were also known to hold positions of honor and service to America, and he was survived by eight children at the time of his passing. Arthur Middleton died at the age of 44 from a fever that would not subside, in 1787, the same year that the United States Constitution was adopted.

J. Edward Lee, Ph.D., is Professor of History at Winthrop University. Lee is a former mayor of the City of York, South Carolina.

 

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(November 1, 1787)

Source: Consource. Click Here to view the original document.

To the CITIZENS of the STATE of NEW-YORK.

I flatter myself that my last address established this position, that to reduce the Thirteen States into one goverment, would prove the destruction of your liberties.

But lest this truth should be doubted by some, I will now proceed to consider its merits.

Though it should be admitted, that the arguement against reducing all the states into one consolidated government, are not sufficient fully to establish this point; yet they will, at least, justify this conclusion, that in forming a constitution for such a country, great care should be taken to limit and define its powers, adjust its parts, and guard against an abuse of authority. How far attention has been paid to these objects, shall be the subject of future enquiry. When a building is to be errected which is intended to stand for ages, the foundation should be firmlylaid. The constitution proposed to your acceptance, is designed not for yourselves alone, but for generations yet unborn. The principles, therefore, upon which the social compact is founded, ought to have been clearly and precisely stated, and the most express and full declaration of rights to have been made-But on this subject there is almost an entire silence.

If we may collect the sentiments of the people of America, from their own most solemn declarations, they hold this truth as self evident, 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. The origin of society then is to be sought, not in any natural right which one man has to exercise authority over another, but in the united consent of those who associate. The mutual wants of men, at first dictated the propriety of forming societies; and when they were established, protection and defence pointed out the necessity of instituting government In a state of nature every individual pursues his own interest; in this pursuit it frequently happened, that the possessions or enjoyments of one were sacrificed to the views and designs of another; thus the weak were a prey to the strong, the simple and unwary were subject to impositions from those who were more crafty and designing. In this state of things, every individual was insecure; common interest therefore directed, that government should be established, in which the force of the whole community should be collected, and under such directions, as to protect and defend everyone who composed it The common good, therefore, is the end of civil government, and common consent, the foundation on which it is established.1 To effect this end, it was necessary that a certain portion of natural liberty should be surrendered, in order, that what remained should be preserved: how great a proportion of natural freedom is necessary to be yielded by individuals, when they submit to government, I shall not now enquire. So much, however, must be given up, as will be sufficient to enable those, to whom the administration of the government is committed, to establish laws for the promoting the happiness of the community, and to carry those laws into effect But it is not necessary, for this purpose, that individuals should relinquish all their natural rights. Some are of such a nature that they cannot be surrendered. Of this kind are the rights of conscience, the right of enjoying and defending life, &c. Others are not necessary to be resigned, in order to attain the end for which government is instituted, these therefore ought not to be given up. To surrender them, would counteract the very end of government, to wit, the common good. From these observations it appears, that in forming government on its true principles, the foundation should be laid in the manner I before stated, by expressly reserving to the people such of their essential natural rights, as are not necessary to be parted with. The same reasons which at first induced mankind to associate and institute government, will operate to influence them to observe this precaution. If they had been disposed to conform themselves to the rule of immutable righteousness, government would not have been requisite. It was because one part exercised fraud, oppression, and violence on the other, that men came together, and agreed that certain rules should be formed, to regulate the conduct of all, and the power of the whole community lodged in the hands of rulers to enforce an obedience to them. But rulers have the same propensities as other men; they are as likely to use the power with which they are vested for private purposes, and to the injury and oppression of those over whom they are placed, as individuals in a state of nature are to injure and oppress one another. It is therefore as proper that bounds should be set to their authority, as that government should have at first been instituted to restrain private injuries.

This principle, which seems so evidently founded in the reason and nature of things, is confirmed by universal experience. Those who have governed, have been found in all ages ever active to enlarge their powers and abridge the public liberty. This has induced the people in all countries, where any sense of freedom remained, to fix barriers against the encroachments of their rulers. The country from which we have derived our origin, is an eminent example of this. Their magna charta and bill of rights have long been the boast, as well as the security, of that nation. I need say no more, I presume, to an American, than, that this principle is a fundamental one, in all the constitutions of our own states; there is not one of them but what is either founded on a declaration or bill of rights, or has certain express reservation of rights interwoven in the body of them. From this it appears, that at a time when the pults of liberty beat high and when an appeal was made to the people to form constitutions for the government of themselves, it was their universal sense, that such declarations should make a part of their frames of government. It is therefore the more astonishing, that this grand security, to the rights of the people, is not to be found in this constitution.

It has been said, in answer to this objection, that such declaration of rights, however requisite they might be in the constitutions of the states, are not necessary in the general constitution, because, “in the former case, every thing which is not reserved is given, but in the latter the reverse of the proposition prevails, and every thing which is not given is reserved.” It requires but little attention to discover, that this mode of reasoning is rather specious than solid. The powers, rights, and authority, granted to the general government by this constitution, are as complete, with respect to every object to which they extend, as that of any state government-It reaches to every thing which concerns human happiness-Life, liberty, and property, are under its controul. There is the same reason, therefore, that the exercise of power, in this case, should be restrained within proper limits, as in that of the state governments. To set this matter in a clear light, permit me to instance some of the articles of the bills of rights of the individual states, and apply them to the case in question.

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 That it is essential to the security of life and liberty, that trial of facts be in the vicinity where they happen. Are not provisions of this kind as necessary in the general government, as in that ofa particular state? The powers vested in the new Congress extend in many cases to life; they are authorised to provide for the punishment ofa variety of capital crimes, and no restraint is laid upon them in its exercise, save only, that “the trial of all crimes, except in cases of impeachment, shall be by jury; and such trial shall being the state where the said crimes shall have been committed.” No man is secure of a trial in the county where he is charged to have committed a crime; he may be brought from Niagara to New-York, or carried from Kentucky to Richmond for trial for an offence, supposed to be committed. What security is there, that a man shall be furnished with a full and plain description of the charges against him? That he shall be allowed to produce all proof he can in his favor? That he shall see the witnesses against him face to face, or that he shall be fully heard in his own defence by himself or counsel?

For the security of liberty it has been declared, “that excessive bail should not be required, nor excessive fines imposed, nor cruel or unusual punishments inflicted-That all warrants, without oath or affirmation, to search suspected places, or seize any person, his papers or property, are grievous and oppressive.”

These provisions are as necessary under the general government asunder that of the individual states; for the power of the former is as complete to the purpose of requiring bail, imposing fines, inflicting punishments, granting search warrants, and seizing persons, papers, or property, in certain cases, as the other.

For the purpose of securing the property of the citizens, it is declared by all the states, “that in 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.”

Does not the same necessity exist of reserving this right, under this national compact, as in that of this state? Yet nothing is said respecting it. In the bills of rights of the states it is declared, that a well regulated militia is the proper and natural defence of a free government-That as standing armies in time of peace are dangerous, they are not to be kept up, and that the military should be kept under strict subordination to, and controuled by the civil power.

The same security is as necessary in this constitution, and much more so; for the general government will have the sole power to raise and to pay armies, and are under no controul in the exercise of it; yet nothing of this is to be found in this new system.

I might proceed to instance a number of other rights, which were as necessary to be reserved, such as, that elections should be free, that the liberty of the press should be held sacred; but the instances adduced, are sufficient to prove, that this argument is without foundation.2 -Besides, it is evident, that the reason here assigned was not the true one, why the framers of this constitution omitted bill of rights; if it had been, they would not have made certain reservations, while they totally omitted others of more importance. We find they have, in the 9th section of the 1st article, declared, that the writ of habeas corpus shall not be suspended, unless in cases rebellion-3 that no bill of attainder, or expost facto law, shall be passed-4 that no title of nobility shall be granted by the United States, &c.5 If every thing which is not given is reserved, what propriety is there in these exceptions? Does this constitution anywhere grant the power suspending the habeas corpus, to make expost facto laws, pass bills of attainder, or grant titles of nobility? It certainly does not in express terms. The only answer that can be given is, that these are implied in the general powers granted. With equal truth it may be said, that all the powers, which the bills of right, guard against the abuse of are contained or implied in the general ones granted by this constitution.6

So far it is from being true, that a bill of rights is less necessary in the general constitution than in those of the states, the contrary is evidently the fact- This system, if it is possible for the people of America to accede – to it, will be an original compact; and being the last, will, in the nature of things, vacate every former agreement inconsistent with it For it being a plan of government received and ratified by the whole people – , all other forms, which are in existence at the time of its adoption, must yield to it This is expressed in positive and unequivocal terms, in the 6th article, “That this constitution and the laws of the United States, which shall be made in pursuance thereof and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution, or laws of any state, to the contrary notwithstanding.7

“The senators and representatives before-mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States, and of the several states, shall be bound, by oath or affirmation, to support this constitution.” It is therefore not only necessarily implied thereby, but positively expressed, that the different state constitutions are repealed and entirely done away, so far as they are inconsistent with this, with the laws which shall be made in pursuance thereof, or with treaties made, or which shall be made, under the authority of the United States; of what avail will the constitutions of the respective states be to preserve the rights of its citizens?8 should they be plead, the answer would be, the constitution of the United States, and the laws made in pursuance thereof, is the supreme law, and all legislatures and judicial officers, whether of the general or state governments, are bound by oath to support it. No priviledge, reserved by the bills of rights, or secured by the state government, can limit the power granted by this, or restrain any laws made in pursuance of it It stands therefore on its own bottom, and must receive a construction by itself without any reference to any other-And hence it was of the highest importance, that the most precise and express declarations and reservations of rights should have been made.9

This will appear the more necessary, when it is considered, that not only the constitution and laws made in pursuance thereof, but all treaties made, or which shall be made, under the authority of the United States, are the supreme law of the land, and supersede the constitutions of all the states.10 The power to make treaties, is vested in the president, by and with the advice and consent of two thirds of the senate. I do not find any limitation, or restriction, to the exercise of this power. The most important article in any constitution may therefore be repealed, even without a legislative act.11 Ought not a government, vested with such extensive and indefinite authority, to have been restricted by a declaration of rights? It certainly ought So clear a point is this, that I cannot help suspecting, that persons who attempt to persuade people, that such reservations were less necessary under this constitution than under those of the states, are wilfully endeavouring deceive, and to lead you into an absolute state of vassalage.

November 1, 1787

Source: Teaching American History 

MR. PRINTER, In order that people may be sufficiently impressed, with the necessity of establishing a BILL OF RIGHTS in the forming of a new constitution, it is very proper to take a short view of some of those liberties, which it is of the greatest importance for Freemen to retain to themselves, when they surrender up a part of their natural rights for the good of society.

The first of these, which it is of the utmost importance for the people to retain to themselves, which indeed they have not even the right to surrender, and which at the same time it is of no kind of advantages to government to strip them of, is the LIBERTY OF CONSCIENCE. I know that a ready answer is at hand, to any objections upon this head. We shall be told that in this enlightened age, the rights of conscience are perfectly secure: There is no necessity of guarding them; for no man has the remotest thoughts of invading them. If this be the case, I beg leave to reply that now is the very time to secure them.—Wise and prudent men always take care to guard against danger beforehand, and to make themselves safe whilst it is yet in their power to do it without inconvenience or risk.—who shall answer for the ebbings and flowings of opinion, or be able to say what will be the fashionable frenzy of the next generation? It would have been treated as a very ridiculous supposition, a year ago, that the charge of witchcraft would cost a person her life in the city of Philadelphia; yet the fate of the unhappy old woman called Corbmaker, who was beaten—repeatedly wounded with knives—mangled and at last killed in our streets, in obedience to the commandment which requires “that we shall not suffer a witch to live,” without a possibility of punishing or even of detecting the authors of this inhuman folly, should be an example to warn us how little we ought to trust to the unrestrained discretion of human nature.

Uniformity of opinion in science, morality, politics or religion, is undoubtedly a very great happiness to mankind; and there have not been wanting zealous champions in every age, to promote the means of securing so invaluable a blessing. If in America we have not lighted up fires to consume Heretics in religion, if we have not persecuted unbelievers to promote the unity of the faith, in matters which pertain to our final salvation in a future world, I think we have all of us been witness to something very like the same spirit, in matters which are supposed to regard our political salvation in this world. In Boston it seems at this very moment, that no man is permitted to publish a doubt of the infallibility of the late convention, without giving up his name to the people, that he may be delivered over to speedy destruction; and it is but a short time since the case was little better in this city. Now this is a portion of the very same spirit, which has so often kindled the fires of the inquisition: and the same Zealot who would hunt a man down for a difference of opinion upon a political question which is the subject of public enquiry, if he should happen to be fired with zeal for a particular species of religion, would be equally intolerant. The fact is, that human nature is still the same that ever it was: the fashion indeed changes; but the seeds of superstition, bigotry and enthusiasm, are too deeply implanted in our minds, ever to be eradicated; and fifty years hence, the French may renew the persecution of the Huguenots, whilst the Spaniards in their turn may become indifferent to their forms of religion. They are idiots who trust their future security to the whim of the present hour. One extreme is always apt to produce the contrary, and those countries, which are now the most lax in their religious notions, may in a few years become the most rigid, just as the people of this country from not being able to bear any continental government at all, are now flying into the opposite extreme of surrendering up all the powers of the different states, to one continental government.

The more I reflect upon the history of mankind, the more I am disposed to think that it is our duty to secure the essential rights of the people, by every precaution; for not an avenue has been left unguarded, through which oppression could possibly enter in any government; without some enemy of the public peace and happiness improving the opportunity to break in upon the liberties of the people; and none have been more frequently successful in the attempt, than those who have covered their ambitious designs under the garb of a fiery zeal for religious orthodoxy. What has happened in other countries and in other ages, may very possibly happen again in our own country, and for aught we know, before the present generation quits the stage of life. We ought therefore in a bill of rights to secure, in the first place, by the most express stipulations, the sacred rights of conscience. Has this been done in the constitution, which is now proposed for the consideration of the people of this country?—Not a word on this subject has been mentioned in any part of it; but we are left in this important article, as well as many others, entirely to the mercy of our future rulers.

But supposing our future rulers to be wicked enough to attempt to invade the rights of conscience; I may be asked how will they be able to effect so horrible a design? I will tell you my friends—The unlimited power of taxation will give them the command of all the treasures of the continent; a standing army will be wholly at their devotion, and the authority which is given them over the militia, by virtue of which they may, if they please, change all the officers of the militia on the continent in one day, and put in new officers whom they can better trust; by which they can subject all the militia to strict military laws, and punish the disobedient with death, or otherwise, as they shall think right: by which they can march the militia back and forward from one end of the continent to the other, at their discretion; these powers, if they should ever fall into bad hands, may be abused to the worst of purposes. Let us instance one thing arising from this right of organizing and governing the militia. Suppose a man alledges that he is conscientiously scrupulous of bearing Arms.—By the bill of rights of Pennsylvania he is bound only to pay an equivalent for his personal service.—What is there in the new proposed constitution to prevent his being dragged like a Prussian soldier to the camp and there compelled to bear arms?—This will depend wholly upon the wisdom and discretion of the future legislature of the continent in the framing their militia laws; and I have lived long enough to hear the practice of commuting personal service for a paltry fine in time of war and foreign invasion most severely reprobated by some persons who ought to have judged more rightly on the subject—Such flagrant oppressions as these I dare say will not happen at the beginning of the new government; probably not till the powers of government shall be firmly fixed; but it is a duty we owe to ourselves and our posterity if possible to prevent their ever happening. I hope and trust that there are few persons at present hardy enough to entertain thoughts of creating any religious establishment for this country; although I have lately read a piece in the newspaper, which speaks of religious as well as civil and military offices, as being hereafter to be disposed of by the new government; but if a majority of the continental legislature should at any time think fit to establish a form of religion, for the good people of this continent, with all the pains and penalties which in other countries are annexed to the establishment of a national church, what is there in the proposed constitution to hinder their doing so? Nothing; for we have no bill of rights, and every thing therefore is in their power and at their discretion. And at whose discretion? We know not any more than we know the fates of those generations which are yet unborn.

It is needless to repeat the necessity of securing other personal rights in the forming a new government. The same argument which proves the necessity of securing one of them shews also the necessity of securing others. Without a bill of rights we are totally insecure in all of them; and no man can promise himself with any degree of certainty that his posterity will enjoy the inestimable blessings of liberty of conscience, of freedom of speech and of writing and publishing their thoughts on public matters, of trial by jury, of holding themselves, their houses and papers free from seizure and search upon general suspicion or general warrants; or in short that they will be secured in the enjoyment of life, liberty and property without depending on the will and pleasure of their rulers.

If we pass over the consideration of this subject so essential to the preservation of our liberties, and turn our eyes to the form of the government which the Convention have proposed to us, I apprehend that changing the prospect will not wholly alleviate our fears.—A few words on this head, will close the present letter. In the first place the office of President of the United States appears to me to be clothed with such powers as are dangerous. To be the fountain of all honors in the United States, commander in chief of the army, navy and militia, with the power of making treaties and of granting pardons, and to be vested with an authority to put a negative upon all laws, unless two thirds of both houses shall persist in enacting it, and put their names down upon calling the yeas and nays for that purpose, is in reality to be a KING as much a King as the King of Great Britain, and a King too of the worst kind;—an elective King.—If such powers as these are to be trusted in the hands of any man, they ought for the sake of preserving the peace of the community at once to be made hereditary.—Much as I abhor kingly government, yet I venture to pronounce where kings are admitted to rule they should most certainly be vested with hereditary power. The election of a King whether it be in America or Poland, will be a scene of horror and confusion; and I am perfectly serious when I declare that, as a friend to my country, I shall despair of any happiness in the United States until this office is either reduced to a lower pitch of power or made perpetual and hereditary.—When I say that our future President will be as much a king as the king of Great-Britain, I only ask of my readers to look into the constitution of that country, and then tell me what important prerogative the King of Great-Britain is entitled to, which does not also belong to the President during his continuance in office.—The King of Great-Britain it is true can create nobility which our President cannot; but our President will have the power of making all the great men, which comes to the same thing.—All the difference is that we shall be embroiled in contention about the choice of the man, whilst they are at peace under the security of an hereditary succession.—To be tumbled headlong from the pinnacle of greatness and be reduced to a shadow of departed royalty is a shock almost too great for human nature to endure. It will cost a man many struggles to resign such eminent powers, and ere long, we shall find, some one who will be very unwilling to part with them.—Let us suppose this man to be a favorite with his army, and that they are unwilling to part with their beloved commander in chief; or to make the thing familiar, let us suppose, a future President and commander in chief adored by his army and the militia to as great a degree as our late illustrious commander in chief; and we have only to suppose one thing more, that this man is without the virtue, the moderation and love of liberty which possessed the mind of our late general, and this country will be involved at once in war and tyranny. 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. We may also suppose, without trespassing upon the bounds of probability, that this man may not have the means of supporting in private life the dignity of his former station; that like Caesar, he may be at once ambitious and poor, and deeply involved in debt.—Such a man would die a thousand deaths rather than sink from the heights of splendor and power into obscurity and wretchedness. We are certainly about giving our president too much or too little; and in the course of less than twenty years we shall find that we have given him enough to enable him to take all. It would be infinitely more prudent to give him at once as much as would content him, so that we might be able to retain the rest in peace; for if once power is seized by violence not the least fragment of liberty will survive the shock. I would therefore advise my country-men seriously to ask themselves this question;—Whether they are prepared TO RECEIVE A KING? If they are to say at once, and make the kingly office hereditary; to frame a constitution that should set bounds to his power, and, as far as possible secure the liberty of the subject. 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; but by no means, under pretence of a republic, to lay the foundation for a military government, which is the worst of all tyrannies.

Source: The Complete Anti-Federalist, ed. Herbert J. Storing (Chicago:  The University of Chicago Press, 1981) Volume 3, 34-38.

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LETTER IV.

OCTOBER 12th, 1787.

DEAR SIR, It will not be possible to establish in the federal courts the jury trial of the vicinage so well as in the state courts.

Third. There appears to me to be not only a premature deposit of some important powers in the general government-but many of those deposited there are undefined, and may be used to good or bad purposes as honest or designing men shall prevail. By Art. 1, Sect. 2, representatives and direct taxes shall be apportioned among the several states, &c-same art. sect. 8, the Congress shall have powers to lay and collect taxes, duties, &c. for the common defence and general welfare, but all duties, imposts and excises, shall be uniform throughout the United States: By the first recited clause, direct taxes shall be apportioned on the states. This seems to favour the idea suggested by some sensible men and writers, that Congress, as to direct taxes, will only have power to make requisitions; but the latter clause, power to tax immediately individuals, without the intervention of the state legislatures[;] in fact the first clause appears to me only to provide that each state shall pay a certain portion of the tax, and the latter to provide that Congress shall have power to lay and collect taxes, that is to assess upon, and to collect of the individuals in the state, the states quota; but these still consider as undefined powers, because judicious men understand them differently.

It is doubtful whether the vice president is to have any qualifications; none are mentioned; but he may serve as president, and it may be inferred, he ought to be qualified therefore as the president; but the qualifications of the president are required only of the person to be elected president. By art. the 2, sect. 2. “But the Congress may by law 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 the departments:” Who are inferior officers? May not a Congress disposed to vestthe appointment of all officers in the president, under this clause, vest the appointment of almost every officer in the president alone, and destroy the check mentioned in the first part of the clause, and lodged in the senate. It is true, this check is badly lodged, but then some check upon the first magistrate in appointing officers, ought, it appears by the opinion of the convention, and by the general opinion, to be established in the constitution. By art. 3, sect. 2, the supreme court shall have appellate jurisdiction as to law and facts with such exceptions, &c. to what extent it is intended the exceptions shall be carried-Congress may carry them so far as to annihilate substantially the appellate jurisdiction, and the clause be rendered of very little importance.

4th. There are certain rights which we have always held sacred in the United States, and recognized in all our constitutions, and which, by the adoption of the new constitution, its present form will be left unsecured. By article 6, the proposed constitution, and the laws of the United States, which shall be made in pursuance thereof; and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby; any thing in the constitution or laws of any state to the contrary notwithstanding.

It is to be observed that when the people shall adopt the proposed constitution it will be their last and supreme act; it will be adopted not by the people of New-Hampshire, Massachusetts, &c. but by the people of the United States; and whenever this constitution, or any part of it, shall be incompatible with the antient customs, rights, the laws or the constitutions heretofore established in the United States, it will entirely abolish them and do them away: And not only this, but the laws of the United States which shall be made in pursuance of the federal constitution will be also supreme laws, and whenever they shall be incompatible with those customs, rights, laws or constitutions heretofore established, they will also entirely abolish them and do them away.

By the article before recited, treaties also made under the authority of the United States, shall be the supreme law: It is not said that these treaties shall be made in pursuance of the constitution-nor are there any constitutional bounds set to those who shall make them: The president and two thirds of the senate will be empowered to make treaties indefinitely, and when these treaties shall be made, they will also abolish all laws and state constitutions incompatible with them. This power in the president and senate is absolute, and the judges will be bound to allow full force to whatever rule, article or thing the president and senate shall establish by treaty, whether it be practicable to set any bounds to thosewho make treaties, I am not able to say: If not, it proves that this power ought to be more safely lodged.

The federal constitution, the laws of congress made in pursuance of the constitution, and all treaties must have full force and effect in all parts of the United States; and all other laws, rights and constitutions which stand in their way must yield: It is proper the national laws should be supreme, and superior to state or district laws; but then the national laws ought to yield to alienable or fundamental rights and national laws, made by a few men, should extend only to a few national objects. This will not be the case with the laws of congress: To have any proper idea of their extent, we must carefully examine the legislative, executive and judicial powers proposed to be lodged in the general government, and consider them in connection with a general clause in art. 1 sect. 8.in these words (after enumerating a number of powers) “To make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof-The powers of this government as has been observed, extend to internal as well as external objects, and to those objects to which all others are subordinate; it is almost impossible to have a just conception of these powers, or of the extent and number of the laws which may be deemed necessary and proper to carry them into effect, till we shall come to exercise those powers and make the laws. In making laws to carry those powers into effect, it will be expected, that a wise and prudent congress will pay respect to the opinions of a free people, and bottom their laws on those principles which have been considered as essential and fundamental in the British, and in our government: But a congress of a different character will not be bound by the constitution to pay respect to those principles. It is said, that when the people make a constitution, and delegate powers, that all powers not delegated by them to those who govern, is reserved in the people; and that the people, in the present case, have reserved in themselves, and in there state governments, every right and power not expressly given by the federal constitution to those who shall administer the national government. It is said, on the other hand, that the people, when they make a constitution, yield all power not expressly reserved to themselves. The truth is, in either case, it is mere matter of opinion, and men usually take either side of the argument, as will best answer their purposes: But the general presumption being, that men who govern, will, in doubtful cases, construe laws and constitutions most favourably for encreasing their own powers; all wise and prudent people, in forming constitutions, have drawn the line, and carefullynever infringe. It is here wisely stipulated, that the federal legislature shall never pass a bill of attainder, or EXPOST FACTO law; that no tax shall be laid on articles exported, &c. The establishing of one right implies the necessity establishing another and similar one.

On the whole, the position appears to me to be undeniable, that this bill of rights ought to be carried farther, and some other principles established, as a part of this fundamental compact between the people of the United States and their federal rulers.

It is true, we are not disposed to differ much, at present, about religion; but when we are making a constitution, it is to be hoped, for ages and millions yet unborn, why not establish the free exercise of religion, as a part of the national compact There are other essential rights, which we have justly understood to be the rights of freemen; as freedom from hasty and unreasonable search warrants, warrants not founded on oath, and not issued with due caution, for searching and seizing men’s papers, property, and persons. The trials by jury in civil causes, it is said, varies so much in the several states, that no words could be found for the uniform establishment of it. If so the federal legislation will not be able to establish it by any general laws. confess I am of opinion it may be established, but not in that beneficial manner in which we may enjoy it, for the reasons before mentioned. When I speak of the jury trial of the vicinage, or the trial of the fact in the neighbourhood-I do not lay so much stress upon the circumstance of our being tried by our neighbours: in this enlightened countrymen may be probably impartially tried by those who do not live very near them: but the trial of facts in the neighbourhood is of great importance in other respects. Nothing can be more essential than the cross examining witnesses, and generally before the triers of the facts in question. The common people can establish facts with much more ease with oral than written evidence; when trials of facts are removed to a distance from the homes of the parties and witnesses, oral evidence becomes intolerably expensive, and the parties must depend on written evidence, which to the common people is expensive and almost useless; it must be frequently taken ex-parte, and but very seldom leads to the proper discovery of truth.

The trial by jury is very important in another point of view. It is essential in every free country, that common people should have a part and share of influence, in the judicial as well as in the legislative department – To hold open to them the offices of senators, judges, and officers to fill which an expensive education is required, cannot answer any valuable purposes for them; they are not in a situation to be brought forward and to fill those offices; these, and most other offices of any considerable importance, will be occupied by the few. The few, the wellborn, &c. as Mr. Adams calls them, in judicial decisions as well as in legislation, are generally disposed, and very naturally too, to favour those of their own description.

The trial by jury in the judicial department, and the collection of the people by their representatives in the legislature, are those fortunate inventions which have procured for them in this country, their true proportion of influence, and the wisest and most fit means of protecting themselves in the community. Their situation, as jurors and representatives, enables them to acquire information and knowledge in the affairs and government of the society; and to come forward, in turn, as the centinels and guardians of each other. I am very sorry that even a few of our countrymen should consider jurors and representatives in a different point of view, as ignorant, troublesome bodies, which ought not to have any share in the concerns of government.

I confess I do not see in what cases the Congress can, with any pretence of right, make a law to suppress the freedom of the press; though I am not clear, that Congress is restrained from laying any duties whatever on printing and from laying duties particularly heavy on certain pieces printed, and perhaps Congress may require large bonds for the payment of these duties. Should the printer say, the freedom of the press was secured by the constitution of the state in which he lived, Congress might, and perhaps, with great propriety, answer, that the federal constitution – is the only compact existing between them and the people in this compact the people have named no others, and therefore Congress, in exercising the powers assigned them, and in making laws to carry them into execution, are restrained by nothing beside the federal constitution, anymore than a state legislature is restrained by a compact between the magistrates and people of a county, city, or town of which the people- in forming the state constitution, have taken no notice.

It is not my object to enumerate rights of inconsiderable importance; but there are others, no doubt, which ought to be established as a fundamental part of the national system.

It is worthy of observation, that all treaties are made by foreign nations with a confederacy of thirteen states-that the western country is attached to thirteen states-thirteen states have jointly and severally engaged to pay the public debts-Should a new government be formed of nine, ten, eleven, or twelve states, those treaties could not be considered as binding on the foreign nations who made them. However, I believe the probability to be, that if nine states adopt the constitution, the others will.

It may also be worthy our examination, how far the provision for amending this plan, when it shall be adopted, is of any importance. No measures can be taken towards amendments, unless two-thirds of the Congress, or two-thirds of the legislatures of the several states shall agree-While power is in the hands of the people, or democratic part of the community, more especially as at present, it is easy, according to the general course of human affairs, for the few influential men in the community, to obtain conventions, alterations in government, and to persuade the common people they may change for the better, and to get from them a part of the power: But when power is once transferred from the many to the few, all changes become extremely difficult; the government, in this case, being beneficial to the few, they will be exceedingly artful and adroit in preventing any measures which may lead to a change; and nothing will produce it, but great exertions and severe struggles on the part of the common people. Every man of reflection must see, that the change now proposed, is a transfer of power from the many to the few, and the probability is, the artful and ever active aristocracy, will prevent all peaceable measures for changes, unless when they shall discover some favorable moment to increase their own influence. I am sensible, thousands of men in the United States, are disposed – to adopt the proposed constitution, though they perceive it to be essentially defective, under an idea that amendment of it, may be obtained when necessary. This is a pernicious idea, it argues a servility of character totally unfit for the support of free government; it is very repugnant to that perpetual jealousy respecting liberty, so absolutely necessary in all free states, spoken of by Mr. Dickinson.-However, if our countrymen are so soon changed, and the language of 1774, is become odious to them, it will be in vain to use the language of freedom, or to attempt to rouse them to free enquiries: But I shall never believe this is the case with them, whatever present appearances may be, till I shall have very strong evidence indeed of it.

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(Continued. )

I said in my last number, that the supreme court under this constitution would be exalted above all other power in the government, and subject to no controul. The business of this paper will be to illustrate this, and to shew the danger that will result from it. I question whether the world ever saw, in any period of it, a court of justice invested with such immense powers, and yet placed in a situation so little responsible. Certain it is, that in England, and in the several states, where we have been taught to believe, the courts of law are put upon the most prudent establishment, they are on a very different footing. The judges in England, it is true, hold their offices during their good behaviour, but then their determinations are subject to correction by the house of lords; and their power is by no means so extensive as that of the proposed supreme court of the union.-I believe they in no instance assume the authority to set aside an act of parliament under the idea that it is inconsistent with their constitution. They consider themselves bound to decide according to the existing laws of the land, and never undertake to controul them by adjudging that they are inconsistent with the constitution- much less are they vested with the power of giving an equitable construction to the constitution.

The judges in England are under the controul of the legislature, for they are bound to determine according to the laws passed by them. But the judges under this constitution will controul the legislature, for the supreme court are authorised in the last resort, to determine what is the extent of the powers of the Congress; they are to give the constitution an explanation, and there is no power above them to sit aside their judgment. The framers of this constitution appear to have followed that of the British, in rendering the judges independent, by granting them their offices during good behaviour, without following the constitution of England, in instituting a tribunal in which their errors may be corrected; and without adverting to this, that the judicial under this system have a power which is above the legislative, and which indeed transcends any power before given to a judicial by any free government under heaven.

I do not object to the judges holding their commissions during good behaviour. I suppose it a proper provision provided they were made properly responsible. But I say, this system has followed the English government in this, while it has departed from almost every other principle of their jurisprudence, under the idea, of rendering the judges independent; which, in the British constitution, means no more than that they hold their places during good behaviour, and have fixed salaries, they have made the judges independent, in the fullest sense of the word. 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. Before I proceed to illustrate the truth of these assertions, I beg liberty to make one remark. Though in my opinion the judges ought to hold their offices during good behaviour, yet I think it is clear, that the reasons in favour of this establishment of the judges in England, do by no means apply to this country.

The great reason assigned, why the judges in Britain ought to be commissioned during good behaviour, is this, that they may be placed in a situation, not to be influenced by the crown, to give such decisions, as would tend to increase its powers and prerogatives. While the judges held their places at the will and pleasure of the king, on whom they depended not only for their offices, but also for their salaries, they were subject to every undue influence. If the crown wished to carry a favorite point, to accomplish which the aid of the courts of law was necessary, the pleasure of the king would be signified to the judges. And it required the spirit of a martyr, for the judges to determine contrary to the king’s will. – They were absolutely dependent upon him both for their offices and livings. The king, holding his office during life, and transmitting it to his posterity as an inheritance, has much stronger inducements to increase the prerogatives of his office than those who hold their offices for stated periods, or even for life. Hence the English nation gained a great point, in favour of liberty. When they obtained the appointment of the judges, during good behaviour, they got from the crown a concession, which deprived it of one of the most powerful engines with which it might enlarge the boundaries of the royal prerogative and encroach on the liberties of the people. But these reasons do not apply to this country, we have no hereditary monarch; those who appoint the judges do not hold their offices for life, nor do they descend to their children. The same arguments, therefore, which will conclude in favor of the tenor of the judge’s offices for good behaviour, lose a considerable part of their weight when applied to the state and condition of America. But much less can it be shewn, that the nature of our government requires that the courts should be placed beyond all account more independent, so much so as to be above controul.

I have said that the judges under this system will be independent in the strict sense of the word: To prove this I will shew-That there is no power above them that can controul their decisions, or correct their errors. There is no authority that can remove them from office for any errors or want of capacity, or lower their salaries, and in many cases their power is superior to that of the legislature.

1st. There is no power above them that can correct their errors or controul their decisions- The adjudications of this court are final and irreversible, for there is no court above them to which appeals can lie, either in error or on the merits.-In this respect it differs from the courts in England, for there the house of lords is the highest court, to whom appeals, in error, are carried from the highest of the courts of law.

2d. They cannot be removed from office or suffer a dimunition of their salaries, for any error in judgement or want of capacity.

It is expressly declared by the constitution,-“That they shall at stated times receive a compensation for their services which shall not be diminished during their continuance in office.”

The only clause in the constitution which provides for the removal of the judges from offices, is that which declares, that “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.” By this paragraph, civil officers, in which the judges are included, are removable only for crimes. Treason and bribery are named, and the rest are included under the general terms of high crimes and misdemeanors. – Errors in judgement, or want of capacity to discharge the duties of the office, can never be supposed to be included in these words, high crimes and misdemeanors. A man may mistake a case in giving judgment, or manifest that he is incompetent to the discharge of the duties of a judge, and yet give no evidence of corruption or want of integrity. To support the charge, it will be necessary to give in evidence some facts that will shew, that the judges commited the error from wicked and corrupt motives.

3d. The power of this court is in many cases superior to that of the legislature. I have shewed, in a former paper, that this court will be authorised to decide upon the meaning of the constitution, and that, not only according to the natural and obvious meaning of the words, but also according to the spirit and intention of it. In the exercise of this power they will not be subordinate to, but above the legislature. For all the departments of this government will receive their powers, so far as they are expressed in the constitution, from the people immediately, who are the source of power. The legislature can only exercise such powers as are given them by the constitution, they cannot assume any of the rights annexed to the judicial, for this plain reason, that the same authority which vested the legislature with their powers, vested the judicial with theirs-both are derived from the same source, both therefore are equally valid, and the judicial hold their powers independently of the legislature, as the legislature do of the judicial.-The supreme court then have a right, independent of the legislature, to give a construction to the constitution and every part of it, and there is no power provided in this system to correct their construction or do it away. If, therefore, the legislature pass any laws, inconsistent with the sense the judges put upon the constitution, they will declare it void; and therefore in this respect their power is superior to that of the legislature. In England the judges are not only subject to have their decisions set aside by the house of lords, for error, but in cases where they give an explanation to the laws or constitution of the country, contrary to the sense of the parliament, though the parliament will not set aside the judgement of the court, yet, they have authority, by a new law, to explain a former one, and by this means to prevent a reception of such decisions. But no such power is in the legislature. The judges are supreme-and no law, explanatory of the constitution, will be binding on them.

From the preceding remarks, which have been made on the judicial powers proposed in this system, the policy of it may be fully developed.

I have, in the course of my observation on this constitution, affirmed and endeavored to shew, that it was calculated to abolish entirely the state governments, and to melt down the states into one entire government, for every purpose as well internal and local, as external and national. In this opinion the opposers of the system have generally agreed-and this has been uniformly denied by its advocates in public. Some individuals, indeed, among them, will confess, that it has this tendency, and scruple not to say, it is what they wish; and I will venture to predict, without the spirit of prophecy, that if it is adopted without amendments, or some such precautions as will ensure amendments immediately after its adoption, that the same gentlemen who have employed their talents and abilities with such success to influence the public mind to adopt this plan, will employ the same to persuade the people, that it will be for their good to abolish the state governments as useless and burdensome.

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accomodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one. These cases will immediately affect individuals only; so that a series of determinations will probably take place before even the people will be informed of them. In the mean time all the art and address of those who wish for the change will be employed to make converts to their opinion. The people will be told, that their state officers, and state legislatures are a burden and expence without affording any solid advantage, for that all the laws passed by them, might be equally well made by the general legislature. If to those who will be interested in the change, be added, those who will be under their influence, and such who will submit to almost any change of government, which they can be persuaded to believe will ease them of taxes, it is easy to see, the party who will favor the abolition of the state governments would be far from being inconsiderable.-In this situation, the general legislature, might pass one law after another, extending the general and abridging the state jurisdictions, and to sanction their proceedings would have a course of decisions of the judicial to whom the constitution has committed the power of explaining the constitution.-If the states remonstrated, the constitutional mode of deciding upon the validity of the law, is with the supreme court, and neither people, nor state legislatures, nor the general legislature can remove them or reverse their decrees.

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, and do themselves right; and indeed I can see no other remedy that the people can have against their rulers for encroachments of this nature. 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.

Source: The Complete Anti-Federalist, ed. Herbert J. Storing (Chicago:  The University of Chicago Press, 1981) Volume Four, 81-83.

To the People.

There cannot be a doubt, that, while the trade of this continent remains free, the activity of our countrymen will secure their full share. All the estimates for the present year, let them be made by what party they may, suppose the balance of trade to be largely in our favour. The credit of our merchants is, therefore, fully established in foreign countries. This is a sufficient proof, that when business is unshackled, it will find out that channel which is most friendly to its course. We ought, therefore, to be exceedingly cautious about diverting or restraining it. Every day produces fresh proofs, that people, under the immediate pressure of difficulties, do not, at first glance, discover the proper relief. The last year, a desire to get rid of embarrassments induced many honest people to agree to a tender-act, and many others, of a different description, to obstruct the courts of justice. Both these methods only increased the evil they were intended to cure. Experience has since shewn, that, instead of trying to lessen an evil by altering the present course of things, every endeavour should have been applied to facilitate the course of law, and thus to encourage a mutual confidence among the citizens, which increases the resources of them all, and renders easy the payment of debts. By this means one does not grow rich at the expense of another, but all are benefited. The case is the same with the states. Pennsylvania, with one port and a large territory, is less favourably situated for trade than the Massachusetts, which has an extensive coast in proportion to its limits of jurisdiction. Accordingly a much larger proportion of our people are engaged in maritime affairs. We ought therefore to be particularly attentive to securing so great an interest. It is vain to tell us that we ought to overlook local interests. It is only by protecting local concerns, that the interest of the whole is preserved. No man when he enters into society, does it from a view to promote the good of others, but he does it for his own good. All men having the same view are bound equally to promote the welfare of the whole. To recur then to such a principle as that local interests must be disregarded, is requiring of one man to do more than another, and is subverting the foundation of a free government. The Philadelphians would be shocked with a proposition to place the seat of general government and the unlimited right to regulate trade in the Massachusetts. There can be no greater reason for our surrendering the preference to them. Such sacrifices, however we may delude ourselves with the form of words, always originate in folly, and not in generosity.

Let me now request your attention a little while to the actual state of publick credit, that we may see whether it has not been as much misrepresented as the state of our trade.

At the beginning of the present year, the whole continental debt was about twelve millions of pounds in our money. About one quarter part of this sum was due to our foreign creditors. Of these France was the principal, and called for the arrears of interest. A new loan of one hundred and twenty thousand pounds was negotiated in Holland, at five per cent. to pay the arrears due to France. At first sight this has the appearance of bad economy, and has been used for the villainous purpose of disaffecting the people. But in the course of this same year. Congress have negotiated the sale of as much of their western lands on the Ohio and Mississippi, an amount nearly to the whole sum of the foreign debt; and instead of a dead loss by borrowing money at five per cent. to the amount of an hundred and twenty thousand pounds, in one sum, they make a saving of the interest at six per cent. on three millions of their domestick debt, which is an annual saving of an hundred and eighty thousand pounds. It is easy to see how such an immense fund as the western territory may be applied to the payment of the foreign debt. Purchasers of the land would as willingly procure any kind of the produce of the United States as they would buy loan office certificates to pay for the land. The produce thus procured would easily be negotiated for the benefit of our foreign creditors. I do not mean to insinuate that no other provision should be made for our creditors, but only to shew that our credit is not so bad in other countries as has been represented, and that our resources are fully equal to the pressure.

The perfection of government depends on the equality of its operation, as far as human affairs will admit, upon all parts of the empire, and upon all the citizens. Some inequalities indeed will necessarily take place. One man will be obliged to travel a few miles further than another man to procure justice. But when he has travelled, the poor man ought to have the same measure of justice as the rich one. Small inequalities may be easily compensated. There ought, however, to be no inequality in the law itself, and the government ought to have the same authority in one place as in another. Evident as this truth is, the most plausible argument in favour of the new plan is drawn from the inequality of its operation in different states. In Connecticut, they have been told that the bulk of the revenue will be raised by impost and excise, and therefore they need not be afraid to trust Congress with the power of levying a dry tax at pleasure. New-York, and Massachusetts, are both more commercial states than Connecticut. The latter, therefore, hopes that the other two will pay the bulk of the continental expense. The argument is in itself delusive. If the trade is not over-taxed, the consumer pays it. If the trade is over-taxed, it languishes, and by the ruin of trade the farmer loses his market. The farmer has in truth no other advantage from imposts than that they save him the trouble of collecting money for the government. He neither gets or loses money by changing the mode of taxation. The government indeed finds it the easiest way to raise the revenue; and the reason is that the tax is by this means collected where the money circulates most freely. But if the argument was not delusive, it ought to conclude against the plan, because it would prove the unequal operation of it, and if any saving is to be made by the mode of taxing, the saving should be applied towards our own debt, and not to the payment of the part of a continental burden which Connecticut ought to discharge. It would be impossible to refute in writing all the delusions made use of to force this system through. Those respecting the publick debt, and the benefit of imposts, are the most important, and these I have taken pains to explain. In one instance indeed, the impost does raise money at the direct expense of the seaports. This is when goods are imported subject to a duty, and re-exported without a drawback. Whatever benefit is derived from this source, surely should not be transferred to another state, at least till our own debts are cleared.

Another instance of unequal operation is, that it establishes different degrees of authority in different states, and thus creates different interests. The lands in New-Hampshire having been formerly granted by this state, and afterwards by that state, to private persons, the whole authority of trying titles becomes vested in a continental court, and that state loses a branch of authority, which the others retain, over their own citizens.

I have now gone through two parts of my argument, and have proved the efficiency of the state governments for internal regulation, and the disadvantages of the new system, at least some of the principal. The argument has been much longer than I at first apprehended, or, possibly, I should have been deterred from it. The importance of the question has, however, prevented me from relinquishing it.

Source: Consource. Click Here To View Original Document.

To the PEOPLE of the State of NEW-YORK.

It was intended in this Number to have prosecuted the enquiry into the organization of this new system; particularly to have considered the dangerous and premature union of the President and Senate, and the mixture of legislative, executive, and judicial powers in the Senate.

But there is such an intimate connection between the several branches in whom the different species of authority is lodged, and the powers with which they are invested, that on reflection it seems necessary first to proceed to examine the nature and extent of the powers granted to the legislature.

This enquiry will assist us the better to determine, whether the legislature is so constituted, as to provide proper checks and restrictions for the security of our rights, and to guard against the abuse of power-For the means should be suited to the end; a government should be framed with a view to the objects to which it extends: if these be few in number, and of such a nature as to give but small occasion or opportunity to work oppression in the exercise of authority, there will be less need of a numerous representation, and special guards against abuse, than if the powers of the government are very extensive, and include a great variety of cases. It will also be found necessary to examine the extent of these powers, in order to form a just opinion how far this system can be considered as a confederation, or a consolidation of the states. Many of the advocates for, and most of the opponents to this system, agree that the form of government most suitable for the United States, is that of a confederation. The idea of a confederated government is that of a number of independent states entering into a compact, for the conducting certain general concerns, in which they have a common interest, leaving the management of their internal and local affairs to their separate governments. But whether the system proposed is of this nature cannot be determined without a strict enquiry into the powers proposed to be granted.

This constitution considers the people of the several states as one body corporate, and is intended as an original compact, it will therefore dissolve all contracts which may be inconsistent with it. This not only results from its nature, but is expressly declared in the 6th article of it. The design of the constitution is expressed in the preamble, to be, “in order to form a more perfect union, to establish justice, insure domestic tranquility, provide for the common defence, promote the general welfare, and secure the blessings of liberty to ourselves and posterity.” These are the ends this government is to accomplish, and for which it is invested with certain powers, among these is the power “to make all laws which are necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof.”1 It is a rule in construing a law to consider the objects the legislature had in view in passing it, and to give it such an explanation as to promote their intention. The same rule will apply in explaining a constitution. The great objects then are declared in this preamble in general and indefinite terms to be to provide for the common defence, promote the general welfare, and an express power being vested in the legislature to make all laws which shall be necessary and proper for carrying into execution all the powers vested in the general government. The inference is natural that the legislature will have an authority to make all laws which they shall judge necessary for the common safety, and to promote the general welfare. This amounts to a power to make laws at discretion: No terms can be found more indefinite than these, and it is obvious, that the legislature alone must judge what laws are proper and necessary for the purpose. It may be said, that this way explaining the constitution, is torturing and making it speak what it never intended. This is far from my intention, and I shall not even insist upon this implied power, but join issue with those who say we are to collect the idea of the powers given from the express words of the clauses granting them; and it will not be difficult to shew that the same authority is expressly given which is supposed to be implied in the forgoing paragraphs.

In the 1st article, 8th section, it is declared, “that 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.” In the preamble, the intent of the constitution, among other things, is declared to be to provide for the common defence, and promote the general welfare, and in this clause the power is in express words given to Congress “to provide for the common defence, and general welfare”-And in the last paragraph of the same section there is an express authority to make all laws which shall be necessary and proper for carrying into execution this power. It is therefore evident, that the legislature under this constitution may pass any law which they may think proper.2 It is true the 9th section restrains their power with respect to certain objects. But these restrictions are very limited, some of them improper, some unimportant, and others not easily understood, as I shall hereafter shew. It has been urged that the meaning I give to this part of the constitution is not the true one, that the intent of it is to confer on the legislature the power to lay and collect taxes, &c. in order to provide for the common defence and general welfare. To this I would reply, that the meaning and intent of the constitution is to be collected from the words of it, and submit to the public, whether the construction I have given it is not the most natural and easy. But admitting the contrary opinion to prevail, I shall nevertheless, be able to shew, that the same powers are substantially vested in the general government, by several other articles in the constitution. It invests the legislature with authority to lay and collect taxes, duties, imposts and excises, in order to provide for the common defence, and promote the general welfare, and to pass all laws which may be necessary and proper for carrying this power into effect. To comprehend the extent of this authority, it will be requisite to examine 1st. what is included in this power to lay and collect taxes, duties, imposts and excises.

2d. What is implied in the authority, to pass all laws which shall be necessary and proper for carrying this power into execution.

3d. What limitation, if any, is set to the exercise of this power by the constitution.

1st. To detail the particulars comprehended in the general terms, taxes, duties, imposts and excises, would require a volume, instead of a single piece in a newspaper. Indeed it would be a task far beyond my ability, and to which no one can be competent, unless possessed of a mind capable of comprehending every possible source of revenue; for they extend to every possible way of raising money, whether by director indirect taxation. Under this clause may be imposed a poll-tax, a land-tax, a tax on houses and buildings, on windows and fire places, on cattle and on all kinds of personal property:-It extends to duties on all kinds of goods to any amount, to tonnage and poundage on vessels, to duties on written instruments, news-papers, almanacks, and books:-It comprehends an excise on all kinds of liquors, spirits, wines, cyder, beer, &c. and indeed takes in duty or excise on every necessary or conveniency of life; whether of foreign or home growth or manufactory. In short, we can have no conception of any way in which a government can raise money from the people, but what is included in one or other of these general terms. We may say then that this clause commits to the hands of the general legislature every conceivable source of revenue within the United States. Not only are these terms very comprehensive, and extend to a vast number of objects, but the power to lay and collect has great latitude; it will lead to the passing a vast number of laws, which may affect the personal rights of the citizens of the states, expose their property to fines and confiscation, and put their lives in jeopardy: it opens a door to the appointment of a swarm of revenue and excise officers to prey upon the honest and industrious part of the community, eat up their substance, and riot on the spoils of the country.

2d. We will next enquire into what is implied in the authority to pass all laws which shall be necessary and proper to carry this power into execution.

It is, perhaps, utterly impossible fully to define this power. The authority granted in the first clause can only be understood in its full extent, by descending to all the particular cases in which a revenue can be raised; the number and variety of these cases are so endless, and as it were infinite, that no man living has, as yet, been able to reckon them up. The greatest geniuses in the world have been for ages employed in the research, and when mankind had supposed that the subject was exhausted they have been astonished with the refined improvements that have been made in modern times, and especially in the English nation on the subject-If then the objects of this power cannot be comprehended, how is it possible to understand the extent of that power which can pass all laws which shall be necessary and proper for carrying it into execution? 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. It requires the greatest talents of a statesman, and the most numerous and exact provisions of the legislature. The command of the revenues of a state gives the command of every thing in it.-He that has the purse will have the sword, and they that have both, have every thing; so that the legislature having every source from which money can be drawn under their direction, with a right to make all laws necessary and proper for drawing forth all the resource of the country, would have, in fact, all power.

Were I to enter into the detail, it would be easy to shew how this power in its operation, would totally destroy all the powers of the individual states. But this is not necessary for those who will think for themselves, and it will be useless to such as take things upon trust, nothing will awaken them to reflection, until the iron hand oppression compel them to it.

I shall only remark, that this power, given to the federal legislature, directly annihilates all the powers of the state legislatures. There cannot be a greater solecism in politics than to talk of power in a government, without the command of any revenue. It is as absurd as to talk of an animal without blood, or the subsistence of one without food. Now the general government having in their controul every possible source of revenue, and authority to pass any law they may deem necessary to draw them forth, or to facilitate their collection; no source of revenue is therefore left in the hands of any state. Should any state attempt to raise money by law, the general government may repeal or arrest it in the execution, for all their laws will be the supreme law of the land:4 If then anyone can be weak enough to believe that a government can exist without having the authority to raise money to pay a door-keeper to their assembly, he may believe that the state government can exist, should this new constitution take place.

It is agreed by most of the advocates of this new system, that the government which is proper for the United States should be a confederated one; that the respective states ought to retain a portion of their sovereignty, and that they should preserve not only the forms of their legislatures, but also the power to conduct certain internal concerns. How far the powers to be retained by the states shall extend, is the question; we need not spend much time on this subject, as it respects this constitution, for a government without the power to raise money is one only in name. It is clear that the legislatures of the respective states must be altogether dependent on the will of the general legislature, for the means supporting their government. The legislature of the United States will have a right to exhaust every source of revenue in every state, and to annul all laws of the states which may stand in the way of effecting it; unless therefore we can suppose the state governments can exist without money to support the officers who execute them, we must conclude they will exist no longer than the general legislatures choose they should.5 Indeed the idea of any government existing, in any respect, as an independent one, without any means of support in their own hands, is an absurdity. If therefore, this constitution has in view, what many of its framers and advocates say it has, to secure and guarantee to the separate states the exercise of certain powers of government it certainly ought to have left in their hands some sources of revenue. It should have marked the line in which the general government should have raised money, and set bounds over which they should not pass, leaving to the separate states other means to raise supplies for the support of their governments, and to discharge their respective debts. To this it is objected, that the general government ought to have power competent to the purposes of the union; they are to provide for the common defence, to pay the debts of the United States, support foreign ministers, and the civil establishment of the union, and to do these they ought to have authority to raise money adequate to the purpose.6 On this I observe, that the state governments have also contracted debts, they require money to support their civil officers, and how this is to be done, if they give to the general government a power to raise money in every way in which it can possibly be raised, with such a controul over the state legislatures as to prohibit them, whenever the general legislature may think proper, from raising any money. It is again objected that it is very difficult, if not impossible, to draw the line of distinction between the powers of the general and state governments on this subject. The first, it is said, must have the power of raising the money necessary for the purposes of the union, if they are limited to certain objects the revenue may fall short of a sufficiency for the public exigencies, they must therefore have discretionary power. The line may be easily and accurately drawn between the powers of the two governments on this head. The distinction between external and internal taxes, is not a novel one in this country, it is a plain one, and easily understood. The first includes impost duties on all imported goods; this species of taxes it is proper should be laid by the general government; many reasons might be urged to shew that no danger is to be apprehended from their exercise of it. They may be collected in few places, and from few hands with certainty and expedition. But few officers are necessary to be imployed in collecting them, and there is no danger of oppression in laying them, because, if they are laid higher than trade will bear, the merchants will cease importing, or smuggle their goods. We have therefore sufficient security, arising from the nature of the thing, against burdensome, and intolerable impositions from this kind of tax. But the case is far otherwise with regard to direct taxes; these include poll taxes, land taxes, excises, duties on written instruments, on every thing we eat, drink, or wear; they take hold of every species of property, and come home to every man’s house and packet. These are often so oppressive, as to grind the face of the poor, and render the lives of the common people a burden to them. The great and only security the people can have against oppression from this kind of taxes, must rest in their representatives. If they are sufficiently numerous to be well informed of the circumstances, and ability of those who send them, and have a proper regard for the people, they will be secure. The general legislature, as I have shewn in a former paper, will not be thus qualified, and therefore, on this account, ought not to exercise the power of direct taxation. If the power of laying imposts will not be sufficient, some other specific mode of raising a revenue should have been assigned the general government; many may be suggested in which their power may be accurately defined and limited, and it would be much better to give them authority to lay and collect a duty on exports, not to exceed a certain rate per cent, than to have surrendered every kind of resource that the country has, to the complete abolition of the state governments, and which will introduce such an infinite number of laws and ordinances, fines and penalties, courts, and judges, collectors, and excisemen, that when a man can number them, he may enumerate the stars of Heaven.

I shall resume this subject in my next, and by an induction of particulars shew, that this power, in its exercise, will subvert all state authority, and will work to the oppression of the people, and that there are no restrictions in the constitution that will soften its rigour, but rather the contrary.

November 15, 1787

Source: Consource. Click Here To View Original Document.
To the CITIZENS of the STATE of NEW-YORK.

In the investigation of the constitution, under your consideration, great care should be taken, that you do not form your opinions respecting it, from unimportant provisions, or fallacious appearances.

On a careful examination, you will find, that many of its parts, of little moment, are well formed; in these it has a specious resemblance of a free government-but this is not sufficient to justify the adoption of it-the gilded pill, is often found to contain the most deadly poison.

You are not however to expect, a perfect form of government, any more than to meet with perfection in man; your views therefore, ought to be directed to the main pillars upon which a free government is to rest; if these are well placed, on a foundation that will support the superstructure, you should be satisfied, although the building may want a number of ornaments, which, if your particular tastes were gratified, you would have added to it: on the other hand, if the foundation is insecurely laid, and the main supports are wanting, or not properly fixed, however the fabric may be decorated and adorned, you ought to reject it.

Under these impressions, it has been my object to turn your attention to the principal defects in this system.

I have attempted to shew, that a consolidation of this extensive continent, under one government, for internal, as well as external purposes, which is evidently the tendency of this constitution, cannot succeed, without a sacrifice of your liberties; and therefore that the attempt is not only preposterous, but extremely dangerous; and I have shewn, independent of this, that the plan is radically defective in a fundamental principle, which ought to be found in every free government; to wit, a declaration of rights.

I shall now proceed to take a nearer view of this system, to examine its parts more minutely, and shew that the powers are not properly deposited, for the security of public liberty.

The first important object that presents itself in the organization of this government, is the legislature. This is to be composed of two branches; the first to be called the general assembly, and is to be chosen by the people of the respective states, in proportion to the number of their inhabitants, and is to consist of sixty five members, with powers in the legislature to encrease the number, not to exceed one for every thirty thousand inhabitants. The second branch is to be called the senate, and is to consist of twenty-six members, two of which are to be chosen by the legislatures of each of the states.1

In the former of these there is an appearance of justice, in the appointment of its members-but if the clause, which provides for this branch, be stripped of its ambiguity, it will be found that there is really no equality of representation, even in this house.

The words are “representatives and direct taxes, shall be apportioned among the several states, which may be included in this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other persons.”-What a strange and unnecessary accumulation of words are here used to conceal from the public eye, what might have been expressed in the following concise manner. Representatives are to be proportioned among the states respectively, according to the number of freemen and slaves inhabiting them, counting five slaves for three free men.

“In a free state,” says the celebrated Montesquieu, “everyman, who is supposed to be a free agent, ought to be concerned in his own government, therefore the legislature should reside in the whole body of the people, or their representatives.” But it has never been alledged that those who are not free agents, can, upon any rational principle, have any thing to do in government, either by themselves or others. If they have no share in government, why is the number of members in the assembly, to be increased on their account? Is it because in some of the states, a considerable part of the property of the inhabitants consists in a number of their fellow men, who are held in bondage, in defiance of every idea of benevolence, justice, and religion, and contrary to all the principles of liberty, which have been publickly avowed in the late glorious revolution? If this be a just ground for representation, the horses in some of the states, and the oxen in others, ought to be represented-for a great share of property in some of them, consists in these animals; and they have as much controul over their own actions, as these poor unhappy creatures, who are intended to be described in the above recited clause, by the words, “all other persons.”2 By this mode of apportionment, the representatives of the different parts of the union, will be extremely unequal; in some of the southern states, the slaves are nearly equal in number to the free men; and for all these slaves, they will be entitled to a proportionate share in the legislature-this will give them an unreasonable weight in the government, which can derive no additional strength, protection, nor defence from the slaves, but the contrary. Why then should they be represented? What adds to the evil is, that these states are to be permitted to continue the inhuman traffic of importing slaves, until the year 1808-and for every cargo of these unhappy people, which unfeeling, unprincipled, barbarous, and avaricious wretches, may tear from their country, friends and tender connections, and bring into those states, they are to be rewarded by having an increase of members in the general assembly.3 There appears at the first view a manifest inconsistency, in the apportionment ofrepresentatives in the senate, upon the plan of a consolidated government. On every principle of equity, and propriety, representation in a government should be in exact proportion to the numbers, or the aids afforded by the persons represented. How unreasonable, and unjust then is it, that Delaware should have a representation in the senate, equal to Massachusetts, or Virginia? The latter of which contains ten times her numbers, and is to contribute to the aid of the general government in that proportion?4 This article of the constitution will appear the more objectionable, if it is considered, that the powers vested in this branch of the legislature are very extensive, and greatly surpass those lodged in the assembly, not only for general purposes, but, in many instances, for the internal police of the states. The other branch of the legislature, in which, if in either, a feint spark of democracy is to be found, should have been properly organized and established-but upon examination you will find, that this branch does not possess the qualities of a just representation, and that there is no kind of security, imperfect as it is, for its remaining in the hands of the people.

It has been observed, that the happiness of society is the end of government-that every free government is founded in compact; and that, because it is impracticable for the whole community to assemble, or when assembled, to deliberate with wisdom, and decide with dispatch, the mode of legislating representation was devised. The very term, representative, implies, that the person or body chosen for this purpose, should resemble those who appoint them-a representation of the people of America, if it be a true one, must be like the people. It ought to be so constituted, that a person, who is a stranger to the country, might be able to form a just idea of their character, by knowing that of their representatives. They are the sign-the people are the thing signified. It is absurd to speak of one thing being the representative of another, upon any other principle. The ground and reason of representation, in a free government, implies the same thing. Society instituted government to promote the happiness of the whole, and this is the great end always in view in the delegation of powers. It must then have been intended, that those who are placed instead of the people, should possess their sentiments and feelings, and be governed by their interests, or, in other words, should bear the strongest resemblance of those in whose room they are substituted. It is obvious, that for an assembly to be a true likeness of the people of any country, they must be considerably numerous.-One man, or a few men, cannot possibly represent the feelings, opinions, and characters of a great multitude. In this respect, the new constitution is radically defective.-The house of assembly, which is intended as a representation of the people of America, will not, nor cannot, in the nature of things, be a proper one-sixty-five men cannot be found in the United States, who hold the sentiments, possess the feelings, or are acquainted with the wants and interests of this vast country.5 This extensive continent is made up of a number of different classes of people; and to have a proper representation of them, each class ought to have an opportunity choosing their best informed men for the purpose; but this cannot possibly be the case in so small a number. The state of New-York, on the present apportionment, will send six members to the assembly: I will venture to affirm, that number cannot be found in the state, who will bear a just resemblance to the several classes of people who compose it. In this assembly, the farmer, merchant, mecanick, and other various orders of people, ought to be represented according to their respective weight and numbers; and the representatives ought to be intimately acquainted with the wants, understand the interests of the several orders in the society, and feel a proper sense and becoming zeal to promote their prosperity. I cannot conceive that any six men in this state can be found properly qualified in these respects to discharge such important duties: but supposing it possible to find them, is there the least degree of probability that the choice of the people will fall upon such men? According to the common course of human affairs, the natural aristocracy of the country will be elected. Wealth always creates influence, and this is generally much increased by large family connections: this class in society will for ever have a great number of dependents; besides, they will always favour each other-it is their interest to combine-hey will therefore constantly unite their efforts to procure men of their own rank to be elected- they will concenter all their force in every part of the state into one point, and by acting together, will most generally carry their election. It is probable, that but few of the merchants, and those the most opulent and ambitious, will have a representation from their body-few of them are characters sufficiently conspicuous to attract the notice of the electors of the state in so limited a representation. The great body of the yeoman of the country cannot expect any of their order in this assembly-the station will be too elevated for them to aspire to-the distance between the people and their representatives, will be so very great, that there is no probability that a farmer, however respectable, will be chosen-the mechanicks of every branch, must expect to be excluded from a seat in this Body-It will and must be esteemed a station too high and exalted to be filled by any but the first men in the state, in point of fortune; so that in reality there will be no part of the people represented, but the rich, even in that branch of the legislature, which is called the democratic.-The well born, and highest orders in life, as they term themselves, will be ignorant of the sentiments of the midling class of citizens, strangers to their ability, wants, and difficulties, and void of sympathy, and fellow feeling. This branch of the legislature will not only be an imperfect representation, but there will be no security in so small a body, against bribery, and corruption- It will consist at first, of sixty-five, and can never exceed one for every thirty thousand inhabitants; a majority of these, that is, thirty-three, are a quorum, and a majority of which, or seventeen, may pass any law-a majority of the senate, or fourteen, are a quorum, and eight of them pass any law-so that twenty-five men, will have the power to give away all the property of the citizens of these states-what security therefore can there be for the people, where their liberties and property are at the disposal of so few men?6 It will literally be a government in the hands of the few to oppress and plunder the many. You may conclude with a great degree of certainty, that it, like all others of a similar nature, will be managed by influence and corruption, and that the period is not far distant, when this will be the case, if it should be adopted; for even now there are some among us, whose characters stand high in the public estimation, and who have had a principal agency in framing this constitution, who do not scruple to say, that this is the only practicable mode of governing a people, who think with that degree of freedom which the Americans do-this government will have in their gift a vast number of offices of great honor and emolument. The members of the legislature are not excluded from appointments; and twenty-five of them, as the case may be, being secured, any measure may be carried.

The rulers of this country must be composed of very different materials from those of any other, of which history gives us any account, if the majority of the legislature are not, before many years, entirely at the devotion of the executive-and these states will soon be under the absolute domination of one, or a few, with the fallacious appearance of being governed by men of their own election.

The more I reflect on this subject, the more firmly am I persuaded, that the representation is merely nominal-a mere burlesque; and that no security is provided against corruption and undue influence. No free people on earth, who have elected persons to legislate for them, ever reposed that confidence in so small a number. The British house of commons consists of five hundred and fifty-eight members; the number of inhabitants in Great-Britain, is computed at eight millions-this gives one member for a little more than fourteen thousand, which exceeds double the proportion this country can ever have: and yet we require a larger representation in proportion to our numbers, than Great-Britain, because this country is much more extensive, and differs more in its productions, interests, manners, and habits. The democratic branch of the legislatures of the several states in the union consists, I believe at present, of near two thousand; and this number was not thought too large for the security of liberty by the framers of our state constitutions: some of the states may have erred in this respect, but the difference between two thousand, and sixty-five, is so very great, that it will bear no comparison.

Other objections offer themselves against this part of the constitution-I shall reserve them for a future paper, when I shall shew, defective as this representation is, no security is provided, that even this shadow of the right, will remain with the people.